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Exhibit 10.48
SYNDICATED LOAN AGREEMENT
RMB 5,000,000,000
CHINA MOBILE (SHENZHEN) LIMITED
(Acting as "Borrower")
BANK OF CHINA
CONSTRUCTION BANK OF CHINA
(Acting as "Joint Lead Managers")
CONSTRUCTION BANK OF CHINA
BANK OF CHINA
(Acting as "Joint Lead Underwriters")
STATE DEVELOPMENT BANK
AGRICULTURE BANK OF CHINA
INDUSTRIAL AND COMMERCIAL BANK OF CHINA
(Acting as "Co-Lead Managers")
BANK OF COMMUNICATIONS
HONG KONG & SHANGHAI BANKING CORPORATION LTD.
CHINA MERCHANTS BANK
(Acting as "Managers")
BANK OF CHINA, SHENZHEN BRANCH
(Acting as "Agency Bank")
JINGTIAN & GONGCHENG LAW FIRM
October 7, 2000, Beijing
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TABLE OF CONTENTS
Articles Pages
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Article One Terms and Definitions........................ 2
Article Two Loan Arrangement............................. 5
Article Three Drawdown..................................... 5
Article Four Guarantee.................................... 9
Article Five Repayment, Prepayment, Extension............. 9
Article Six Interest..................................... 12
Article Seven Tax.......................................... 13
Article Eight Fees and Expenses............................ 13
Article Nine Payment and Proof of Debt.................... 14
Article Ten The Relations Among Banks, Rights and
Obligations, and Responsibilities............ 14
Article Eleven Borrower's Representations and Warranties.... 24
Article Twelve Borrower's Covenants......................... 25
Article Thirteen Lending Banks' Warranties.................... 27
Article Fourteen Events of Default and Other Similar Events... 28
Article Fifteen Default Interest and Compensation............ 29
Article Sixteen Transfer..................................... 30
Article Seventeen Notices...................................... 31
Article Eighteen Governing Law and Jurisdiction............... 33
Article Nineteen Insurance.................................... 34
Article Twenty Other Stipulations........................... 34
Schedule One Lending Banks and the Credit Amount
Undertaken................................... 48
Schedule Two List of Guarantors........................... 50
Schedule Three Form of Drawdown Notice...................... 52
Schedule Four Form of Prepayment Notice.................... 53
Schedule Five Form of Reply to Prepayment Notice........... 54
Schedule Six Form of Payment Notice....................... 55
Schedule Seven Form of Letter of Guarantee.................. 56
Schedule Eight Form of Extension Application................ 65
Schedule Nine Form of Extension Reply...................... 67
Schedule Ten Form of Interest Payment Notice.............. 68
Schedule Eleven Form of Legal Opinion Issued by Lawyer of
the Borrower and Guarantors.................. 69
Schedule Twelve Form of Legal Opinion Issued by Lawyer of
Lending Banks................................ 76
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SYNDICATED LOAN AGREEMENT
THIS AGREEMENT IS EXECUTED ON OCTOBER 7, 2000, IN BEIJING BY THE PARTIES AS
FOLLOWS:
1. China Mobile (Shenzhen) Limited, a wholly-owned subsidiary of China Mobile
(Hong Kong) Limited incorporated in mainland China, registered at Shenzhen
Administrative Bureau of Industry and Commerce, with a registered address
of 10th Floor, Guotong Building, 9023 Binhedadao, Futian District,
Shenzhen, acting as the Borrower (hereinafter referred to as the
"Borrower");
2. Bank of China and Construction Bank of China, acting as Joint Lead
Managers and Joint Lead Underwriters;
3. State Development Bank, Agriculture Bank of China, and Industrial and
Commercial Bank of China, acting as Co-Lead Managers;
4. Bank of Communications, Hong Kong & Shanghai Banking Corporation Ltd., and
China Merchants Bank, acting as Managers;
5. Banks listed in Schedule One hereunder, acting as Member Banks of the
Syndicate;
6. Bank of China, Shenzhen Branch, acting as Agency Bank; and
7. Companies listed in Schedule Two hereunder, acting jointly as Guarantors.
This Agreement is established in accordance with the Commercial Banking
Law of the People's Republic of China, General Rules for Providing Loans,
Provisional Regulations on Providing Syndicated Loans, the Security Law of the
People's Republic of China, and other applicable laws and regulations of the
People's Republic of China.
PREFACE
1. The Borrower is a wholly-owned subsidiary of China Mobile (Hong Kong)
Limited, which holds 100% of its equity interest.
2. Currently, China Mobile (Hong Kong) Limited directly or indirectly holds
100% of the equity interest of each of the guarantors listed in Schedule
Two.
3. China Mobile Communications Corporation ("CMCC") has restructured its
mobile telecommunication business in seven provinces, municipalities, and
autonomous region (namely, Beijing, Shanghai, Tianjin, Liaoning, Hebei,
Shandong, and Guangxi) and established mobile communication companies in
the aforesaid seven provinces, municipalities, and autonomous region. Upon
the incorporation of the mobile communication companies in the seven
provinces, municipalities, and autonomous region, CMCC will, through China
Mobile (Hong Kong) Group Limited ("CMHK Group") and China Mobile
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Hong Kong (BVI) Limited ("China Mobile BVI"), inject all the equity
interest it holds in the mobile communication companies in the seven
provinces, municipalities, and autonomous region to seven wholly-owned BVI
subsidiaries ("Seven BVI Subsidiaries") of China Mobile BVI. Upon the
completion of such injection, CMHK will acquire from China Mobile BVI the
equity interest it holds in the Seven BVI Subsidiaries (hereinafter
referred to as the "Acquisition Transaction").
4. In accordance with the Acquisition Plan approved by relevant departments
of the State Council, part of the consideration will be raised by the
Borrower, in lieu of its parent company China Mobile (Hong Kong) Limited,
through a Renminbi-denominated debt financing conducted within the
territory of China, and will be paid directly to CMCC.
5. In accordance with the Acquisition Plan approved by relevant departments
of the State Council, six subsidiaries directly or indirectly owned by
China Mobile (Hong Kong) Limited, acting as Guarantors, agree to jointly
issue a letter of guarantee to the Lending Banks, and to provide guarantee
to the Lending Banks for the Borrower with their respective capital.
6. To complete the aforesaid Acquisition Transaction, the Borrower, pursuant
to the current requirements of financial regulations and supervisions,
applies to the Lending Banks for a Renminbi-denominated debt financing
("Class A Loan") with a total principal amount not exceeding RMB 5 billion
(RMB 5,000,000,000.00) and a term of SIX (6) months as well as a
Renminbi-denominated debt financing ("Class B Loan") with a total
principal amount not exceeding RMB 7.5 billion (RMB 7,500,000,000.00) and
a term of THREE (3) years within the territory of China in accordance with
the approval from the State Council.
7. For the purposes of this Agreement, the Loan means Class A Loan.
THEREFORE, the Parties have reached the following Agreement:
ARTICLE ONE TERMS AND DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
terms have the following meanings:
1) "Loan Arrangement" means the Renminbi-denominated syndicated loans
provided in accordance with this Agreement;
2) "Term" means the term of the loan set out in accordance with Article
2.3 herein;
3) "Effective Term of the Loan Agreement" means the period from the
effective date (including the effective date) to the date (including
any Extensions) when the total amount of the Loan (including the
total interest and fees) set out in the Loan Agreement herein has
been repaid
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to the Lending Banks;
4) "This Agreement" means this Syndicated Loan Agreement and its
Schedules, as well as any modifications, edits, and amendments to
this Syndicated Loan Agreement;
5) "Loan" means the loan arranged in accordance with the Loan
Arrangement set out in this Agreement;
6) "Security" means any guarantee, undertaking, security, pledge, lien,
setting creditor's right, hypothecation or any other arrangement of
security interest.
7) "Member Banks" mean banks that have committed to provide loans in
accordance with this Agreement.
8) "Lending Banks" mean banks that provide loans in accordance with
this Agreement.
9) "Guarantors" mean companies or institutions that provide guarantee
for the Borrower.
10) "Letter of Guarantee" means the letter of guarantee issued by
guarantors in the form set out in Schedule Seven herein;
11) "Overseas Financing" means equity financing and debt financing
conducted in Hong Kong, U.S. and other places by China Mobile (Hong
Kong) Limited in an effort to complete the acquisition transaction;
12) "Bank Business Day" means a day (other than China's legal
non-business days and legal holidays) on which banks in Beijing are
open for general banking business;
13) "Drawdown Date" means a Bank Business Day on which the Loan is drawn
by the Borrower in accordance with Article 3 herein;
14) "Repayment Date" means the first day following the expiry of six (6)
calendar months after the Drawdown Date, and the Repayment Date
shall fall on a Bank Business Day (and in case of a non-Bank
Business Day, it shall postpone accordingly to fall on the next Bank
Business Day);
15) "Prepayment Date" means the prepayment date set out in the
Prepayment Notice, and the Prepayment Date shall fall on a Bank
Business Day;
16) "Extension Repayment Date" means the extension repayment date
approved at the syndicate meeting upon receiving an Extension
Application from the Borrower, the Extension Repayment Date shall
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fall on a Bank Business Day;
17) "Drawdown Period" means the drawdown period set out in Article 3.1
herein;
18) "Interest Calculation Period" means the interest calculation period
set out in Article 6.3 herein;
19) "Interest Payment Date" means the Bank Business Day set out in
Article 6.3 herein;
20) "Advancement" means the principal amount of the Loan provided by
Lending Banks through the Agency Bank to the Borrower when the
Borrower draws any Loan in accordance with Article 3 herein;
21) "Event of Default" means any event defined as an Event of Default
and/or Event of Cross-Default in Article 14 herein;
22) "Anticipatory Event of Default" means any event that will become an
Event of Default upon the issuance of the notice and/or lapse of
time and any event defined as such in Article 14.3 herein;
23) "Agency Bank" means Bank of China, Shenzhen Branch;
24) "Loan Documents" mean this Agreement and any other documents
executed for the performance of this Agreement;
25) "Drawdown Notice" means the drawdown notice in the form set out in
Schedule Three herein;
26) "Prepayment Notice" means the prepayment notice in the form set out
in Schedule Four herein;
27) "Repayment Notice" means the repayment notice in the form set out in
Schedule Six herein;
28) "Extension Application" means the extension application in the form
set out in Schedule Eight herein;
29) "Interest Payment Notice" means the interest payment notice in the
form set out in Schedule Ten herein;
30) "Tax" means any present or future tax, charge, compulsory charge,
deduction and withholding of every kinds, and any related interest
or penalty on the tax levied or imposed by the Central Government of
the People's Republic of China and/or local tax authorities, or
other agencies;
31) "Acquisition Transaction" means the acquisition by China Mobile
(Hong Kong) Limited of the equity interest of the Seven BVI
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Subsidiaries held by China Mobile BVI; and
32) "Insurance" means various insurances required to be purchased by
relevant laws or regulations, competent authorities of the industry,
or compulsory insurances of the industry.
1.2 In this Agreement, unless the context otherwise requires, (1) this
Agreement includes the amendment or supplementary documents of this
Agreement or any Loan Documents; (2) Articles, Sections, and Schedules
refer to Articles, Sections, and Schedules of this Agreement; and (3) the
table of contents and headings of Articles of this Agreement are for
convenience of reference and do not constitute interpretation of this
Agreement, and they do not impose any limitations upon the content and its
respective scope under the titles.
ARTICLE TWO LOAN ARRANGEMENT
2.1 Principal Amount of the Loan
Subject to the observation of the terms and conditions set out in this
Agreement and the performance of all the conditions precedent to the
Drawdown by the Borrower, the Lending Banks agree to provide the Borrower
with a loan, the principal amount of which shall not exceed RMB 5 billion
(RMB 5,000,000,000.00).
2.2 Purpose of the Loan
The Loan is to be used for the sole purpose as follows: as part of the
cash consideration to be paid in connection with the acquisition by China
Mobile (Hong Kong) Limited of the equity interest of the Seven BVI
Subsidiaries from China Mobile BVI, the Borrower, entrusted by China
Mobile (Hong Kong) Limited, directly pays the amount to CMCC designated by
China Mobile BVI.
2.3 Term
The term of the Loan is SIX (6) months, from the first Drawdown Date to
the day immediately preceding the expiry of six (6) months after such
first Drawdown Date (In case it falls on a Non-Bank Business Day, it shall
be postponed to the next Bank Business Day).
ARTICLE THREE DRAWDOWN
3.1 Drawdown Period
The Drawdown Period shall begin on the effective date herein and end on
the earlier of (a) the day immediately preceding the first anniversary of
the effective date, and (b) the date when the total principal amount of
the Loan has been withdrawn.
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3.2 Conditions Precedent to the First Drawdown
When and until all the following conditions are met, the Lending Banks
will be obliged to make the Loan available to the Borrower, and the
Borrower may submit to the Agency Bank a Drawdown Notice:
1) All following documents have been provided to the Agency Bank:
i. About the Borrower
a) The Borrower's articles of association;
b) The approval certificate for the establishment of a wholly
foreign-owned enterprise issued by the competent authorities
of trade and economic cooperation;
c) The Borrower's currently valid business license (counterpart)
issued by the State Administration of Industry and Commerce;
d) The Borrower's tax registration certificate (counterpart);
e) The Borrower's foreign exchange registration certificate;
f) The resolution approved by the Borrower's board of directors
on the following issues: borrowing the loan in accordance with
the provisions of this Agreement and authorizing one or more
persons to execute this Agreement, any other relevant Loan
Documents and all Drawdown Notices as well as other documents
to be executed in relation to this Agreement, and the
signature samples of such persons;
g) The presentation and relevant proof documents produced by the
Borrower with regard to the security interest of any kind set
upon its assets and/or any contingent liabilities of any kind
assumed by the Borrower prior to the execution date of this
Agreement; and
h) The approval documents of the State Council for the payment of
the purchase price of the acquisition by the Borrower on
behalf of China Mobile (Hong Kong) Limited and for the Loan
Arrangement;
ii. About the Guarantors
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a) Each Guarantor' articles of association;
b) The approval certificates for the establishment of a wholly
foreign-owned enterprise issued to each of the Guarantors by
the competent authorities of trade and economic cooperation;
c) Each Guarantor' currently valid business license (counterpart)
issued by the State Administration of Industry and Commerce;
d) Each Guarantor' tax registration certificate (counterpart);
e) Each Guarantor' foreign exchange registration certificate;
f) The resolutions approved by each Guarantor' boards of
directors on the following issues: providing guarantee in
accordance with the provisions of this Agreement and/or the
Letter of Guarantee and authorizing one or more persons to
execute this Agreement and/or the Letter of Guarantee; and the
signature samples of such persons;
g) The presentation and relevant proof documents produced by each
Guarantor with regard to the security interest of any kind
with a total amount exceeding RMB100 million imposed upon its
assets and/or any contingent liabilities of any kind assumed
by it prior to the execution date of this Agreement;
h) The certificate executed by the legal representative of each
Guarantor certifying that on and prior to the Drawdown Date,
no Event of Defaults have taken place on the part of each
Guarantor, and the statement that all the representations,
statements, warranties, and covenants made by it in this
Agreement and/or Letter of Guarantee are true and accurate;
and
i) The originals of the Letter of Guarantee, which have been duly
executed and effective, is in accordance with in the form set
out in Schedule Seven herein;
iii. Other Documents
a) The confirmation letter produced by the chairman of the board
of directors of China Mobile (Hong Kong) Limited on behalf of
the board of directors approving the Syndicated Loan
Arrangement under this Agreement and consenting to the
Guarantee Arrangement under
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this Agreement;
b) The Legal Opinion produced by Chinese lawyer of the Lending
Banks in the form set out in Schedule Twelve herein; and
c) The Legal Opinion produced by Chinese lawyer of the Borrower
and Guarantors in the form set out in Schedule Eleven herein;
Upon receiving all the documents on the aforesaid Conditions
Precedent to the Drawdown, the Agency Bank shall deliver on a timely
basis to the Lending Banks a written notice confirming the
completeness of the documents on the Conditions Precedent to the
first Drawdown;
2) No Event of Default or Anticipatory Event of Default has occurred on
the part of the Borrower or Guarantor; and
3) All the fees and charges set out in Article 8 herein have been paid
in full.
3.3 Relevant Requirements on the Drawdown
The Drawdown shall meet the following requirements:
1) The Borrower shall submit to the Agency Bank, SEVEN (7) Bank
Business Days in advance, an irrevocable Drawdown Notice in the form
set out in Schedule Three herein and shall withdraw the full amount
of the Loan in one lump sum on the Drawdown Date, which shall fall
on a Bank Business Day set out in such Drawdown Notice;
2) Meantime, the Borrower shall submit to the Agency Bank a statement
executed by the Borrower's legal representative or authorized signer
certifying that on and prior to the Drawdown Date, (1) no Event of
Defaults or Anticipatory Event of Defaults have taken place on the
part of the Borrower; (2) all the representations, warranties, and
covenants made by the Borrower in this Agreement are true, accurate,
and effective; and (3) all the documents on the Conditions Precedent
to the Drawdown pursuant to Section 1) of Article 3.2 herein
submitted by the Borrower to the Agency Bank shall still be true,
accurate, and effective;
3) After each Drawdown, the Advancement withdrawn constitutes debt of
the Borrower owed to the Lending Banks.
3.4 Irrevocability of the Drawdown Notice
Unless the context herein otherwise requires, the Borrower shall make the
Drawdown pursuant to the Drawdown Notice. In case that the Borrower fails
to make the Drawdown pursuant to the Drawdown Notice, the Borrower shall,
upon requirement from the Agency Bank, compensate the Agency Bank and all
other Lending Banks for their respective actual financing cost.
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3.5 The Total Amount of the Advancement
The total amount of the Advancement shall not exceed the total amount of
the Loan Arrangement pursuant to this Agreement. Such total amount shall
only be withdrawn by the Borrower during the Drawdown Period. In case that
the Borrower fails to withdraw the total amount of the Loan within the
Drawdown Period, such unclaimed portion of the Loan shall not be withdrawn
after the Drawdown Period expires, unless the Borrower, through the Agency
Bank, and the Lending Banks enter into a written agreement on an Extension
of the Drawdown Period.
3.6 Account Entering Time of the Advancement
The total amount of the Advancement withdrawn by the Borrower shall be
remitted to the Borrower's Renminbi-denominated current account opened at
the Agency Bank not later than Twelve (12:00) o'clock (Beijing Time) at
noon on the Drawdown Date.
ARTICLE FOUR GUARANTEE
4.1 The Producing of Letters of Guarantee
The Guarantors have reached agreement with the Borrower and the Guarantors
agree that concurrently with the execution of this Agreement, each of the
Guarantors will produce a Letter of Guarantee in favor of the Lending
Banks in the form of Schedule Seven herein to guarantee the Loan provided
by the Lending Banks pursuant to this Agreement shall be repaid in full
pursuant to the provisions of this Agreement.
4.2 Obligations of the Guarantors
The liabilities and obligations of the Guarantors are joint and several.
Any Guarantor assumes joint liability with respect to the obligations and
liabilities of another and/or other Guarantor(s). One Guarantor's failure
in performing the obligations under this Agreement or any other Loan
Documents shall not affect the obligations that shall be assumed by any
other Guarantors. In case that the Borrower cannot repay the Loan in full
pursuant to the provisions herein on schedule, the Guarantors shall make
the repayment pursuant to the Repayment Notice delivered to any of the
Guarantors by the Lending Banks through the Agency Bank, and meantime the
Guarantors shall give up the demurrer that the Agency Bank shall first
deliver a Repayment Notice to the Borrower.
ARTICLE FIVE REPAYMENT, PREPAYMENT, EXTENSION
5.1 Repayment Schedule
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The balance of the Loan under this Agreement shall be repaid in full on
Repayment Date in one lump sum by the Borrower to the Lending Banks
through the Agency Bank.
5.2 Repayment Notice
The Agency Bank shall, FIFTEEN (15) Bank Business Days prior to the
Repayment Date, deliver the Repayment Notice to the Borrower to remind the
Borrower of repaying the loan on schedule. However, in case the Agency
Bank fails to deliver the Repayment Notice to the Borrower pursuant to
this clause, the Borrower's liabilities, including the liability to
compensate the Lending Banks, resulting from the failure to make the
repayment on schedule in violation of the provisions herein shall not be
absolved.
5.3 Account Entry of the Repayment Sum
The Borrower shall remit all balance of the Loan at maturity to the
Borrower's Renminbi-denominated current account opened at the Agency Bank
not later than Twelve (12:00) o'clock (Beijing Time) at noon on the
Repayment Date pursuant to the terms under this Agreement.
5.4 Prepayment
During the effective term of the Loan Agreement, the Borrower may repay
prior to its maturity all or part of the Loan on any Bank Business Day
within the Term pursuant to Article 5.3 herein, and pay the due interest
outstanding accrued on such repaid amount over the period ending on such
Prepayment Date subject to the following provisions:
1) The principal amount repaid prior to its maturity shall not be less
than RMB 100 million (RMB 100,000,000.00), and the due interest
outstanding accrued on such repaid amount over the period ending on
such Prepayment Date shall be paid at the same time;
2) The Borrower has submitted to the Agency Bank, at least THIRTY (30)
days in advance, a Prepayment Notice, detailing the principal amount
to be repaid prior to its maturity and the Repayment Date; the
Agency Bank shall, within FIFTEEN (15) days upon receiving such
Prepayment Notice from the Borrower, make a reply, which shall
specify the due interest outstanding accrued on the advanced
repayment amount over the period ending on such Prepayment Date; in
case that the Borrower does not receive such reply from the Agency
Bank, it shall be regarded that the Lending Banks agree to this
advanced repayment, and the Borrower may repay the principal amount
of this repayment on the Prepayment Date, while the due and unpaid
interest accrued on such repaid principal amount shall be paid on a
timely basis upon instruction of the Lending Banks. However, the due
interest outstanding accrued over the period from the Prepayment
Date to the day on which such interest is paid shall not accrue any
interest;
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3) All other due and payable sums of money until such Prepayment Date
herein have been paid;
4) Any Prepayment Notice submitted by the Borrower pursuant to any
stipulations of this Agreement shall be irrevocable, and the
Borrower shall make the advanced repayment in accordance with such
Prepayment Notice. The Borrower shall only repay the Loan or any
other amount prior to its maturity in accordance with the terms and
conditions stipulated herein. The advanced repayment amount under
this Agreement shall not be re-borrowed; and
5) In case that the Borrower repays the Loan or any other amount prior
to its maturity pursuant to the stipulations herein, it shall, when
making the advanced repayment, also pay the Lending Banks all the
due and unpaid interest accrued over a period ending on the
Prepayment Date as well as all other costs payable by the Borrower
under this Agreement.
5.5 Extension
1) The Loan under this Agreement, upon the satisfaction of the
following conditions, may be extended:
i. The representations and warranties listed in Article 11 herein
and the covenants listed in Article 12 herein remain true and
accurate in light of the then existing facts and
circumstances;
ii. There is no Event of Default or Anticipatory Event of Default
that has not been cured or corrected until the day when the
Extension Application is submitted; and
iii. During the period from the execution of the Letter of
Guarantee to the day when the Extension Application is
submitted, the guarantee qualifications, guarantee capacity,
and all other conditions of the Guarantors under this
Agreement and Letter of Guarantee have not experienced any
material adverse changes, the Guarantors still comply with
Chinese laws and regulations with regard to stipulations on
the guarantors' qualifications, and during the proposed
Extension, the Guarantors shall continue to maintain such
lawful and good conditions.
The amount of Loan to be extended in the Extension Application shall
not exceed the balance of the Loan. In accordance with Article 12 of
the General Rules for Providing Loans, the aggregated term of the
Extension under this Agreement shall not exceed SIX (6) months;
2) In case the Borrower requires an Extension, it shall, THIRTY (30)
Bank Business Days prior to the Repayment Date, submit to the
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Agency Bank an Extension Application in the form set out in Schedule
Eight herein;
3) Upon receiving the Extension Application, the Agency Bank shall
immediately notify the Lending Banks, which shall make extension
arrangements pursuant to Section 4) of Article 10.7 herein. If an
Extension is accepted, the Agency Bank shall, FIFTEEN (15) Bank
Business Days prior to the Repayment Date, make an Extension Reply
to the Borrower in the form set out in Schedule Nine herein;
4) The Borrower's extension arrangements shall be guaranteed by the
Guarantors executing this Agreement; in case that the Borrower
proposes to make extension arrangements and makes Extension
Application to the Agency Bank while the Agency Bank considers that
the Guarantors executing this Agreement are no longer qualified to
provide guarantee, the Borrower shall arrange other guarantors to
provide guarantee for the Borrower's extension arrangements;
5) The Guarantors under this Agreement hereby agree that when the
Borrower makes an Extension Application, only the Borrower shall
notify the Guarantors about such extension arrangements and the
Guarantors shall sign and stamp on the Extension Application to
confirm their consent to the extension arrangements. Once the Agency
Bank agrees to the Borrower's Extension Application and begins the
extension arrangement, the Guarantors' guarantee liabilities or
obligations will continue to be applicable to the Loan of the
Extension. The validity of the extension arrangement does not depend
on the further consent by the Guarantors to the extension
arrangements, and the stipulations of this Section shall constitute
a waiver of the Guarantors' right of consent to future extension
arrangements;
6) Regarding the interest rate of the Extension, the Parties agree that
in case that the combined Extension period and the original Term
reach a new interest rate period level, the lending rate of the
extension arrangement shall, beginning from the Extension Date, be
determined, pursuant to the new level with the first day of the
Extension as a base date, at 10% below the base lending rate of the
same level for financial institutions as announced by the People's
Bank of China (PBOC).
ARTICLE SIX INTEREST
6.1 The Borrower shall pay, through the Agency Bank, the Lending Banks the
interest of the loan pursuant to the following provisions.
6.2 The lending rate is determined pursuant the Term stipulated in Article 2.3
herein, at 10% below the base lending rate of the same level for financial
institutions on the effective date of this Agreement as announced by the
PBOC. In case that during the Term of this Agreement, the PBOC adjusts the
interest rate level for the corresponding period, the lending rate for the
Loan
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under this Agreement will not be adjusted.
6.3 Interest accrues on the Loan from and including the day on which the Loan
is transmitted to the Borrower's Renminbi-denominated account opened at
the Agency Bank, to but excluding the Repayment Date. The interest of the
withdrawn and unrepaid principal of the loan is calculated on the basis of
the actual days and is settled on a quarterly basis. The fixed Interest
Payment Date falls on the TWENTIETH (20) day in the last month of a
quarter, namely March 20th, June 20th, September 20th, and December 20th.
In case that it falls on a Non-Bank Business Day, it shall be postponed to
fall on the next Bank Business Day. The method of lending interest
calculation is as follows:
Interest of the Loan = withdrawn and unrepaid principal x actual days
of borrowing the loan x annual interest rate / 360
6.4 The Agency Bank shall, FIFTEEN (15) Bank Business Days prior to the
Interest Payment Date, deliver an Interest Payment Notice in the form set
out in Schedule Ten herein to confirm the due and payable interest amount.
However, in case the Agency Bank fails to deliver the Interest Payment
Notice to the Borrower pursuant to this clause, the Borrower's
liabilities, including the liability to compensate the Lending Banks,
resulting from the failure to pay the interest on schedule in violation of
the provisions herein shall not be absolved.
6.5 Upon the repayment of the principal amount of the Loan under this
Agreement, the due and outstanding interest accrued on such principal
amount shall be settled in a lump sum along with the principal amount.
ARTICLE SEVEN TAX
7.1 The Borrower shall, through the Agency Bank, pay the Lending Banks in full
the entire sum payable under this Agreement, and shall not deduct from or
counterclaim for it, and shall pay and settle any relevant taxes. In case
that any laws, regulations, or statutes require that any sum from the
amount to be paid to the Agency Bank by the borrower shall be deducted or
withheld, the Borrower shall pay the additional sum along with the amount
so that the total amount the Agency Bank receives equals to the total
amount without and before any deductions and withholdings.
7.2 In accordance with the provisions of the Interim Regulations of the
People's Republic of China on Stamp Tax, the Lending Banks, being one
Party to this Agreement, and the Borrower, being the other Party, shall
each pay a stamp tax at the rate of 0.005 percent.
ARTICLE EIGHT FEES AND EXPENSES
8.1 The Borrower, the Agency Bank and the Lending Banks agree that the
Borrower shall pay a one-time fee to the Lending Banks, including the
lawyer fees which shall be borne by the Borrower and the travel expenses,
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documentation expenses, and communication expenses incurred by the Joint
Lead Managers to form the bank syndicate. Such fee shall be paid within
TEN (10) Bank Business Days after the execution of this Agreement. Apart
from such fee, the Borrower shall not be liable to bear any other fees of
the Joint Lead Managers, the Agency Bank and/or the Lending Banks.
ARTICLE NINE PAYMENT AND PROOF OF DEBT
9.1 The Agency Bank shall, pursuant to the stipulations herein, remit the
withdrawn amount to the Borrower's Renminbi-denominated current account
opened at the Agency Bank not later than Twelve (12:00) o'clock (Beijing
Time) at noon on the Drawdown Date.
9.2 All sums payable by the Borrower under this Agreement shall be paid to the
Agency Bank by the Borrower on a timely basis. In case that any sum the
Agency Bank receives is less than the due and payable amount, the Agency
Bank shall distribute it in accordance with the following order:
1) Fees resulting from the satisfaction of creditor's claim;
2) Default interest and compensation;
3) Interest; and
4) Principal;
In addition, the Agency Bank has the right to classify and transfer any
other sums received from the Borrower (excluding the foreign exchange
amount in the Borrower's capital account) as sums owed under this
Agreement in a manner it deems appropriate.
9.3 All sums payable to the Lending Banks pursuant to this Agreement shall be
remitted to the account (designated by the Agency Bank) by the Borrower in
accordance with the Agency Bank's notice. When the sum has been remitted
to the designated account, the payment shall be deemed to be completed.
9.4 The Lending Banks jointly entrust the Agency Bank with the duty of
recording the principal, interest, fee, and any other sums owed by the
Borrower under the Loan Arrangement herein into the Agency Bank's internal
account book. The aforesaid record as well as bills and receipts produced
and kept by the Agency Bank during the normal business course when the
Borrower makes withdrawal, repayment, and interest payment are deemed as
valid proof of creditor's rights and proof of debt among the Lending
Banks, the Agency Bank, and the Borrower.
ARTICLE TEN THE RELATIONS AMONG BANKS, RIGHTS
AND OBLIGATIONS, AND RESPONSIBILITIES
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10.1 The Acknowledgement of the Loan Arrangement under the Syndicated Loan
by the Banks
The banks under this Agreement, including the Joint Lead Managers, Joint
Lead Underwriters, the Agency Bank and other Member Banks and Lending
Banks, hereby understand, acknowledge and agree:
1) The civil right of the banks under this Agreement, including the
Joint Lead Managers, Joint Lead Underwriters, the Agency Bank and
other Member Banks and Lending Banks, is equal; the voting right of
each of the Lending Banks is in proportion to the amount of the Loan
such bank provides;
2) The Member Banks and the Lending Banks shall be Chinese banks within
the territory of China and/or foreign banks approved to conduct
Renminbi businesses within the territory of China;
3) All financial institutions participating in the syndicated loan are
Member Banks of the syndicated loan; The Loan under this Agreement
is RMB loan;
4) In accordance with Chinese laws, the Lending Banks provide the Loan
to the same Borrower pursuant to the same loan agreement, namely,
this Agreement;
5) The principle of volunteer negotiation and volunteer loan
subscription is observed when Member Banks and the Lending Banks
participate in the syndicated loan;
6) All Member Banks and the Lending Banks have prudently examined
materials for evaluating and examining the Borrower, Guarantors and
other materials related to the Loan Arrangement provided by the
Borrower through the Agency Bank; all Member Banks and the Lending
Banks fully understand that pursuant to the provisions of Chinese
laws, the Borrower is obliged to truthfully provide, through the
Agency Bank, Member Banks and the Lending Banks with all necessary
materials on the syndicated loan and answer their inquiries, and to
make the decision to participate in the Loan Arrangement, all Member
Banks and the Lending Banks have taken corresponding steps,
procedures so as to fully understand materials and information
related to the Loan Arrangement; the decision to participate in the
Loan Arrangement under this Agreement is completely based upon the
review conducted by the Member Banks and the Lending Banks
themselves;
7) The amount of the Loan under this Agreement is acknowledged and set
out in Schedule One herein;
8) The Joint Lead Managers, Joint Lead Underwriters, the Agency Bank
and other Member Banks and the Lending Banks jointly execute this
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Agreement with the Borrower and Guarantors;
9) This Agreement is a single loan contract executed upon full
negotiation, duly authorized representatives of the Lending Banks
shall execute this Agreement with the respective official seals
stamped;
10) The principal amount undertaken by each Lending Bank and the time to
provide the amount shall be specified in this Agreement;
11) The interest accrued on the Loan under this Agreement is determined
in accordance with the lending rate and measures set by the PBOC on
the basis of interest rate adjustment plan negotiated between the
Borrower and the Lending Banks; and
12) The Loan under this Agreement is guaranteed by the following
Guarantors: Guangdong Mobile Communication Company Limited, Zhejiang
Mobile Communication Company Limited, Jiangsu Mobile Communication
Company Limited, Fujian Mobile Communication Company Limited, Henan
Mobile Communication Company Limited, and Hainan Mobile
Communication Company Limited. In the event that the Borrower fails
to repay the principal, pay the interest and other fees due on
schedule, the Guarantors shall fulfill the obligation of payment or
bear the responsibility pursuant to the provisions of this Agreement
and the Letter of Guarantee.
10.2 Joint Lead Managers
The responsibilities of the Joint Lead Managers are as follows:
1) The Joint Lead Managers have accepted the formal written delegation
by the Borrower to the Joint Lead Managers regarding the preparation
and formation of the syndicate on September 21, 2000. The Joint Lead
Managers, based on such written delegation, make invitations to
their peers in the business with regard to organizing the bank
syndicate;
2) Delivering invitations to the peers with regard to organizing the
bank syndicate, information memorandum, and other related materials
the Joint Lead Managers deem necessary, specifying the deadline for
feedback and collecting their respective feedback;
3) Retaining lawyers for the bank syndicate;
4) Organizing and arranging the negotiation, preparation, and execution
of this Agreement; and
5) Designating the Agency Bank.
10.3 Joint Lead Underwriters
The responsibilities of the Joint Lead Underwriters are as follows:
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1) Being jointly responsible for underwriting the Loan under the Loan
Arrangement herein. When Member Banks and/or the Lending Banks fail
to provide the Loan pursuant to the provisions herein, the Joint
Lead Underwriters bear the responsibility of making the Loan and
providing the Loan to the Borrower pursuant to the provisions
herein. The performance of Member Banks and/or the Lending Banks of
this Agreement is not a precondition to borrowing the Loan to be
provided by the Joint Lead Underwriters under this Agreement;
2) The Joint Lead Underwriters assume joint and several liability for
the Loan Arrangement under this Agreement on principle of equality;
and
3) In case that the Joint Lead Underwriters fail to fulfill their
responsibilities under this Agreement, they shall assume the
liability pursuant to relevant stipulations.
10.4 The Rights and Obligations of the Member Banks
1) They have the right to know and inquire, through the Agency Bank,
the Borrower's credit condition, its utilization of the syndicate
loan, and its performance of this Agreement;
2) Proposing to hold a bank syndicate meeting prior to the first
Drawdown;
3) Providing Loan amounts undertaken in full on schedule in strict
accordance with the stipulations herein; and
4) Once the Member Banks provide the Loan to the Borrower pursuant to
the stipulations herein, they shall be entitled to the rights of the
Lending Banks, and shall assume the liabilities of the Lending
Banks.
10.5 The Rights and Obligations of the Lending Banks
1) They have the right to know and inquire, through the Agency Bank,
the Borrower's credit condition, its utilization of the syndicate
loan, and its performance of this Agreement;
2) They have the right to require the Agency Bank to distribute the
interest and principal in accordance with the proportion and time
agreed upon;
3) They have the right to point out and ask for the correction of the
failure of the Agency Bank to perform its responsibilities and
obligations or activities that impair the interest of other Lending
Banks;
4) They shall enjoy the interest and assume the risk according to their
proportion of the Loan as well as the stipulations of this
Agreement;
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5) Prior to the decision made at the bank syndicate meeting to call
back the Loan to the Borrower ahead of schedule, they shall not call
back their shares of the Loan ahead of schedule;
6) Proposing to hold a bank syndicate meeting and exercise voting right
in proportion to their loan share;
7) Coordinating and assisting the Agency Bank in dealing with issues
related to the Loan;
8) The Lending Banks shall not, without discussions with the Joint Lead
Managers and the Agency Bank, make any addition and deletion, change
or adjustment in any form to any article herein; shall not enter
into any other agreements or undertakings related to this Agreement
but not covered by this Agreement, and such agreements or
undertakings, if already reached or implemented is deemed invalid;
and
9) The Lending Banks have conducted and will, through the Agency Bank,
conduct investigation and evaluation on the Borrower's and/or
Guarantors' financial condition, credit condition or any other
conditions. The decision and judgment of the Lending Banks do not
depend upon the presentation and introduction of the Joint Lead
Managers and/or the Agency Bank, including but not limited to the
following aspects:
i. Examining and inquiring about, for their own interest, the
accuracy and completeness of any information related to the
Loan Arrangement pursuant to this Agreement (no matter whether
or not such information has been delivered or will henceforth
be delivered to such Borrower and/or Guarantors by the Joint
Lead Managers and/or the Agency Bank) provided by the Borrower
and/or Guarantors; or,
ii. Evaluating and examining Borrower's and/or Guarantors'
financial condition, credit condition or other conditions for
their own interest.
10.6 Agency Bank
1) To perform this Agreement, the Borrower shall, in the name of the
borrower, open a RMB current account at the Agency Bank;
2) Each Lending Bank agrees that the Agency Bank shall be their agent
for the issues concerning this Agreement and entrust the Agency Bank
to perform the rights, powers and authorities as well as all other
reasonable associated rights, powers and authorities specially
entrusted to the Agency Bank pursuant to the provisions herein;
3) In case that,
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i. All representations related to this Agreement made by the
Borrower and/or Guarantors are true;
ii. The Borrower has not violated or failed to fulfill its
obligations under this Agreement; and
iii. The Guarantors have not violated or failed to fulfill their
obligations under this Agreement and/or the Letter of
Guarantee;
then the Agency Bank shall enjoy the following rights and/or
powers:
i. Relying on the certificates executed documents and information
provided, by the Borrower and/or Guarantors or those
representing the Borrower and/or Guarantors;
ii. With the authorization of the Lending Banks, the Agency Bank
may directly take legal actions or procedures against the
default of the Borrower and Guarantors until the losses
resulting from such Event of Default have been fully
compensated for and the Event of Default has been corrected;
In addition, the Agency Bank shall fulfill the following
obligations:
i. Immediately notifying each Lending Bank the content of any
notice or document the Agency Bank receives from the Borrower
or Guarantors; and
ii. Acting in accordance with reasonable instructions from the
Lending Banks;
4) The Agency Bank is not obliged to:
i. Inquire:
a) Whether or not any representations, warranties, and
covenants made by the Borrower in this Agreement are
true;
b) Whether or not any representations, warranties, and
covenants made by the Guarantors in this Agreement
and/or the Letter of Guarantee are true;
c) The occurrence of any event that constitutes an Event of
Default or Anticipatory Event of Default;
d) The performance of the obligations under this Agreement
by the Borrower; and
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e) The performance of the Letter of Guarantee by the
Guarantors;
ii. Disclosing any information concerning the Borrower and/or
Guarantors to any other parties not specified in this
Agreement; or
iii. Assuming any other obligations beyond those specified in this
Agreement;
5) In accordance with relevant provisions herein, to protect the
interest of all Lending Banks, and all expenses, including the
lawyer fees, arising out of relevant legal actions or procedures
taken by the Agency Bank shall be compensated by the Lending Banks,
upon receiving a written notice from the Agency Bank, in proportion
to their respective shares in the Loan pursuant to the requirement
of the Agency Bank;
6) The Agency Bank shall not bear any responsibility for the accuracy
and/or completeness of the information related to this Agreement or
any information on the legality, validity, effectiveness, propriety
or enforceability of this Agreement provided by the Borrower and/or
Guarantors;
7) The Lending Banks agree that they do not advance any possible claim
against any person of the Agency Bank with regard to items specified
in item 4) of Article 10.6 herein;
8) The Responsibilities of the Agency Bank
The Lending Banks grant authorization to the Agency Bank and the Agency
Bank acknowledges and warrants fulfilling the following responsibilities:
i. The Agency Bank shall responsible for the organization and
implementation of this Agreement after its execution;
ii. The Agency Bank shall strictly perform this Agreement and safeguard
the interest of Lending Banks pursuant to the provisions herein, and
shall not impair the lawful interest of other Lending Banks by
taking advantage of the Agency Bank's status;
iii. The Agency Bank is the loan manager after the execution of this
Agreement; the Agency Bank designates a particular person to be in
charge of the specific issues with regard to the syndicated loan,
and is responsible for transferring to the Lending Banks relevant
financial information and data provided by the Borrower;
iv. The Agency Bank, strictly in accordance with relevant provisions
herein, shall handle the allocation of all the principal of the Loan
as well as the collection of the principal and interest;
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v. The Agency Bank will conduct registration of the total amount of the
syndicated loan examined and approved by the Lending Banks and the
respective loan shares provided by the Member Banks and register the
collection of the principal and interest of the loan;
vi. The Agency Bank will timely repay the interest paid and principal
repaid by the Borrower to the Lending Banks in accordance with their
corresponding share of the Loan;
vii. In case that the Borrower fails to repay the syndicated loan in full
on schedule, the Agency Bank shall, pursuant to the provisions
herein, distribute the repaid amount among the Lending Banks in
accordance with their corresponding share of the Loan. The default
interest shall accrue on the overdue amount, and the Agency Bank,
pursuant to relevant regulations of PBOC, will calculate and collect
the default interest from the Borrower.
viii. Upon the execution of this Agreement, the Agency Bank shall submit
the counterpart of this Agreement to PBOC for file;
ix. The Agency Bank is responsible to inform the Borrower its actions of
default, and if no rectification is made, the Agency Bank is
responsible to hold a bank syndicate meeting and impose penalties
upon the Borrower; the penalty decision at the bank syndicate
meeting will be sent to the Borrower and Guarantors in writing; the
penalties include stopping the provision of the Loan, calling back
the Loan ahead of schedule, and default interest, among others; when
necessary, it can file law suits to relevant people's courts;
x. In case that the authorization to the Agency Bank and the authority
of the Agency Bank is inexplicit and unclear, the Agency Bank will
take bona fide measures to safeguard the interest of the Lending
Banks; and
xi. Conduct other issues with regard to the syndicated loan that are
entrusted by the Member Banks.
10.7 Bank Syndicate Meeting
1) The bank syndicate meeting will be proposed by the Agency Bank
and/or Joint Lead Managers, or by more than two Member Banks and/or
Lending Banks. The decision of a bank syndicate meeting shall be in
written form and shall be executed by the legal representatives or
authorized agents of the Lending Banks;
2) The following issues shall be discussed at the syndicate meeting and
shall be approved by Member Banks that undertake more than two
thirds of the loan share or Lending Banks that provide more than two
thirds of the Loan, and the decisions will have the binding force
upon all Member Banks and the Lending Banks:
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i. Declaring an Event of Default on the part of the Borrower and
ascertaining its responsibility for default pursuant to the
Agreement;
ii. Determining the Anticipatory Event of Default;
iii. Deciding to stop the Loan;
iv. Deciding to cancel the undrawn Loan;
v. Deciding to call back the Loan ahead of schedule;
vi. Deciding to file lawsuit or arbitration against the Borrower
and Warrantors; and
vii. Other material issues;
3) The following issues shall be discussed at the syndicate meeting and
shall be approved unanimously by all the Member Banks or Lending
Banks:
i. Amending this Agreement;
ii. Increasing the Loan amount;
iii. Advancing or postponing the Drawdown; and
iv. The change in Guarantors or method of guarantee;
4) The Extension Application put forward by the Borrower shall be
deemed accepted upon the consent from the Joint Lead Underwriters
while other Lending Banks may or may not accept the Extension; in
case that Lending Banks accept the Extension, they shall undertake
their corresponding share of the balance of the Loan extended; in
case that a Lending Bank does not accept the Extension, its relevant
share of the balance of the Loan extended shall be automatically
transferred to and undertaken by the Joint Lead Underwriters
equally.
10.8 Fund Transfer among the Lending Banks and the Agency Bank
1) The Lending Banks assume the obligation of providing the Loan in the
sum specified in Schedule One herein;
2) The fund transfer among the Lending Banks and the Agency Bank will
be conducted through the Lending Banks (or their branches) and the
clearing system of the PBOC at the place where the Agency Bank is
located; transfer of fund by one party under this Agreement to the
other party's account opened at PBOC of the aforesaid location is
deemed the completion of payment;
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3) The Drawdown Notice shall only be delivered by post or courier
instead of being delivered by other means such as fax and e-mail; in
case that it is delivered by post, the time when the Agency Bank
signs the receipt for the post is deemed as the time of receipt; in
case it is delivered by courier, the time when the Agency Bank signs
the receipt for it is deemed as the time of receipt; no matter what
means of delivery is adopted, receipt by the Agency Bank of the
Notice prior to the end of its business hour on a given day is
deemed as having received on such day;
4) The Agency Bank, upon receiving the Drawdown Notice from the
Borrower, shall immediately notify each Lending Bank via fax
followed by confirmation via telephone, and the time for such notice
shall be no later than fifteen (15) o'clock(15:00) Beijing Time on
the next day after the day when such Drawdown Notice is received;
5) The Member Banks and/or Lending Banks, upon receiving the Borrower's
Drawdown Notice from the Agency Bank, shall, within TWO (2) Bank
Business Days, make a written acknowledgement (including by means of
fax) to the Agency Bank with regard to: (1) The receipt of Drawdown
Notice; and (2) Whether or not agree to remit its loan share to the
Agency Bank at the time and in the amount as specified in the
Drawdown Notice. In case that Member Banks and/or Lending Banks
agree to remit the amount to the Agency Bank at the time and in the
amount as specified in the Drawdown Notice, such confirmation letter
then constitutes their obligation of payment; in case that Member
Banks and/or Lending Banks do not agree to remit the amount to the
Agency Bank at the time and in the amount as specified in the
Drawdown Notice, they shall notify the Agency Bank the following
issues: (1) reasons why they fail to act in accordance with the
instructions from the Agency Bank; (2) Whether or not they would
continue to participate in the Loan Arrangement as Lending Banks. In
the case of (2), the Joint Lead Underwriters shall make respective
arrangement on a timely basis so that the principal amount under the
Loan Arrangement continues to be equal to that at the time when this
Agreement is executed;
6) In case that the Lending Banks fail to transfer the amount of Loan
they have undertaken in full on schedule to the account designated
by the Agency Bank pursuant to the provisions of the Drawdown
Notice, the Agency Bank shall immediately notify the Joint Lead
Underwriters, who shall take coordinated measures to raise
corresponding amount of fund so as to ensure that the amount in full
will be transferred to the account opened at the Agency Bank by the
Borrower on the Drawdown Date; regarding any cost or loss resulting
from the emergency measures taken by the Joint Lead Underwriters in
an effort to raise fund under such a circumstance, the Joint Lead
Underwriters shall, through the Agency Bank, deliver to the Lending
Bank that has violated the Agreement a written notice detailing the
loss and its amount, and such Lending Bank shall compensate, through
the Agency
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Bank, to the Joint Lead Underwriters pursuant to such notice; in
case under such a circumstance, the Joint Lead Underwriters fail to
raise the necessary fund after making the best efforts, any loss,
claim from the Borrower, as well as all the liabilities and
consequences resulting therefrom shall be borne by such Lending
Banks that fail to provide its share of the Loan in violation of the
Agreement;
7) The Lending Banks shall, in strict accordance with the Agreement and
provisions of this Agreement, remit the loan amount in full on
schedule to the account of the Agency Bank; the arrival time of fund
shall not be later than ten (10) o'clock (10:00) Beijing Time on the
morning of the Drawdown Date, and any later time shall be deemed as
the next day; and
8) In case that the amount paid by the Agency Bank to the Lending Banks
exceeds the amount the Agency Bank received from the Borrower, the
Agency Bank has the right to ask the Lending Banks to return any
excess amount.
ARTICLE ELEVEN BORROWER'S REPRESENTATIONS AND WARRANTIES
11.1 The Borrower hereby represents and warrants to the Joint Lead Managers,
Joint Lead Underwriters, the Agency Bank, Member Banks, and Lending Banks
as follows:
1) The Borrower is a wholly foreign-owned company of limited liability
established under the laws of China with a qualification to conduct
business in China, and has sufficient power, authority, and legal
right to own its assets and operate its business;
2) The Borrower has the right to borrow the Loan pursuant to the
provisions herein, and has taken all necessary actions and/or other
actions necessary to approve the execution and performance of this
Agreement;
3) This Agreement and other loan documents, upon execution thereof and
with the official seals stamped, constitute an agreement with legal
binding force upon the Borrower;
4) The execution of the loan documents or the performance of any
obligation under the loan documents or the exercise of any rights
under the loan documents by the Borrower will not contradict or
conflict with any laws, regulations, statues, judgments, decrees,
authorizations, agreements, or obligations applicable to the
Borrower; in the event of any contradictions, the Borrower has
already obtained from the competent authorities of the Chinese
government a valid waiver of legal binding force in China, which may
be enforced by legal actions;
5) The Borrower does not have any material liabilities or contingent
liabilities that have not been disclosed to the Agency Bank and
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Lending Banks;
6) No security interest of any kind has been imposed upon the assets or
income of the Borrower that may have material adverse effect upon
the borrowing of the Loan, the utilization and/or repayment of the
Loan;
7) When the Agreement goes into effect, there is no factual or pending
lawsuit, arbitration of the arbitration tribunal, or any other
potential material disputes against the Borrower that may constitute
material adverse effect in any form upon the borrowing of the Loan,
the utilization and/or repayment of the Loan by the Borrower;
8) At present, the Borrower's latest financial statements are prepared
in accordance with applicable Chinese laws and accounting standards.
Such financial statements completely, truly and fairly reflect the
financial status of the Borrower within corresponding fiscal period
as well as its performance during the same period. There has been no
material adverse change in the business or financial conditions of
the Borrower following the end of such fiscal period;
9) The Borrower, upon borrowing the Loan, will utilize the borrowed
fund in strict accordance with the purpose of the Loan as provided
in this Agreement and the laws of China; and
10) All materials provided by the Borrower to the Joint Lead Managers
and the Agency Bank are true, complete, and accurate in all material
aspects.
11.2 The Borrower represents and warrants to the Agency Bank and Lending Banks
that the above representations and warranties are all true and accurate in
light of the existing fact and circumstance on each Drawdown Date.
ARTICLE TWELVE BORROWER'S COVENANTS
12.1 Affirmative Covenants
The Borrower undertakes to the Agency Bank and Lending Banks that within
the Effective Term of the Loan Agreement and prior to the settlement and
repayment of the full amount under the Loan, unless the Agency Bank
consents in writing otherwise, the Borrower will:
1) Remain a wholly owned subsidiary of China Mobile (Hong Kong)
Limited.
2) Provide to the Agency Bank
i. after the Agreement becomes effective, the counterpart of the
latest annual financial statements (if any) which have been
examined and acknowledged by the Board of Directors of the
Borrower, and such statements shall be prepared in accordance
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with applicable Chinese laws and accounting standards;
ii. within six months after the end of each fiscal year, the
counterpart of the financial statements for the fiscal year
which have been examined and acknowledged by the Board of
Directors of the Borrower, and such statements shall be
prepared in accordance with applicable Chinese laws and
accounting standards; and
iii. upon request from the Agency Bank, relevant information on the
Borrower on a timely basis;
3) Immediately notify the Agency Bank the following issues:
i. The occurrence of any Event of Default;
ii. Anticipatory Event of Default or any possible event that will
impair the Lending Banks' interest under the Agreement;
iii. Any lawsuit, arbitration, or claim in any form involving an
aggregate amount of more than RMB fifty million or the
equivalent amount in other currencies claimed by any creditor;
and
iv. Any other material issues, including but not limited to the
change in equity interest structure (of the Borrower);
4) Abide by the applicable laws, regulations, authorizations, or
agreements and fulfill relevant obligations as well as pay due taxes
on time during business operations;
5) Provide the Agency Bank, on a timely basis, with the counterparts of
any material agreement or other loan, guarantee or other financial
arrangement agreements, executed after the Agreement comes into
effect, that may have material adverse effect upon this Agreement;
6) Ensure that, the Borrower's Loan under this Agreement, at any given
time, shall be at least equal to the Borrower's all other secured
debt in terms of order of repayment; and
7) Procure insurance and maintain the validity of various insurances.
12.2 Negative Covenants
The Borrower undertakes to the Agency Bank and Lending Banks that within
the Term and prior to the settlement and repayment of the full amount
under the Loan, the Borrower shall take all proper measures to safeguard
the interest of the Lending Banks and protect it from infringement of any
forms. Unless the Agency Bank otherwise consents in writing, the Borrower
will not:
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1) Ask for the withdrawal of any loan amount under this Agreement prior
to the completion of the Overseas Financing of China Mobile (Hong
Kong) Limited;
2) Merge with any other company, or take any measure with the aim to
dissolve, liquidate, or terminate business operation;
3) Reduce its registered capital;
4) Sell, transfer, or dispose in any other ways any part of business or
assets that may constitute material adverse effect upon its
borrowing, utilization and/or repayment of the Loan;
5) Incur any other debt or contingent liability that has priority over
the Loan in terms of order of repayment; and
6) Impose any material security interest upon its assets for benefit of
any other creditors.
ARTICLE THIRTEEN LENDING BANKS' WARRANTIES
13.1 Each of the Lending Banks, upon receiving the Drawdown Notice delivered by
the Agency Bank, will remit the amount they undertake under the Loan
Arrangement specified in Schedule One to the account designated by the
Agency Bank on schedule pursuant to the stipulations of the Form of
Drawdown Notice set out in Schedule Three.
13.2 The obligations each Lending Bank assumes are separate and individual, and
any Lending Bank's failure to fulfill its obligations under this Agreement
shall not affect nor restrict the other Lending Banks' fulfillment of
obligations under this Agreement, nor affect the Borrower's due
obligations to other Lending Banks. The other Lending Banks shall not
assume any liabilities for the actions of the Lending Bank that fails to
fulfill its obligations under this Agreement. Notwithstanding such
provisions on the Lending Banks' obligations, the Joint Lead Managers and
Joint Lead Underwriters shall assume the joint and several liabilities in
presiding over the arrangement to provide the full amount of Loan under
this Agreement.
13.3 Since the Joint Lead Underwriters, under the Loan Arrangement herein, take
the responsibility to underwrite the Loan on firm commitment basis, when
any Lending Bank fails to provide its share of the Loan to the account
designated by the Agency Bank pursuant to the instruction of the Agency
Bank, the Joint Lead Underwriters shall, in lieu of such Lending Bank,
provide Loan to the Borrower, and each Lending Bank undertakes to
compensate the Agency Bank and/or Joint Lead Underwriters for any cost,
loss, compensation, and other direct relevant expenses in any form
resulting therefrom; such compensation shall be paid within FIFTEEN (15)
days upon receiving the written Payment Notice to such Lending Bank
delivered by the Agency Bank. In the event of any disputes with regard to
such compensation, the payment shall be made by the Lending Bank before
taking any other measures to deal with the disputes.
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The Lending Bank undertakes that it will not refuse to pay or delay to pay
such compensation on the ground of existing disputes.
13.4 The documents and information concerning this Agreement provided by the
Borrower to the Lending Banks shall be used for the sole purpose of making
the Loan Arrangement under this Agreement unless otherwise required by
laws and regulations or the context herein.
ARTICLE FOURTEEN EVENTS OF DEFAULT AND OTHER SIMILAR EVENTS
14.1 Events of Default
Each of the following is an Event of Default:
1) The Borrower fails to pay on schedule any amount that is due and
payable under this Agreement or any other loan documents and in a
manner pursuant to their provisions (excluding during the
Extension);
2) The Borrower or any Guarantor under this Agreement fails to duly and
timely fulfill or abide by their respective obligations under such
documents; and regarding the rectifiable Event of Default and Event
of Default excluding the inability of payment, they, upon receiving
the notice of a written request to rectify such default issued by
the Agency Bank pursuant to the provision set out in Article 14.4
hereunder, fail to make rectification within TWENTY-EIGHT (28) Bank
Business Days (or a longer period possibly approved at the bank
syndicate meeting) pursuant to the provision of Article 14.4;
3) Any representations, warranties and/or undertaking made in loan
documents or in connection with loan documents by the Borrower or
any Guarantor under this Agreement is deemed as being wrong or
misleading in material aspect by the Agency Bank;
4) The occurrence of any event having similar effect as any of the
aforesaid event (details may vary) which relates to any other party
(excluding Lending Banks) under the loan documents and have material
adverse effect upon the financial condition of the Borrower;
14.2 Cross Event of Default
1) Any debt and other amount become or are declared to be due and
payable prior to the stated maturity date are not repaid on the
maturity date and as a result, the Borrower's ability to repay the
principal and pay the interest of the Loan is materially affected;
2) The Borrower fails to repay any debt on the stated maturity date and
fails to make rectifications within the corresponding grace period,
and as a result, the Borrower's ability to repay the principal and
pay the interest of the Loan is materially affected;
3) Any other creditor obtains the ownership of the entire or any part
of the Borrower's business or assets, or the arbitration award or
judgment
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is enforced against any assets of the Borrower, and as a result, the
Borrower's ability to repay the principal and pay the interest of
the Loan is materially affected;
4) The Borrower stops to pay due and payable sum to any other creditor,
fails to repay any debt at maturity or seeks to reach any compromise
or other arrangement with any other creditor, or is declared to be
insolvent;
14.3 Anticipatory Event of Default (Determined at the Bank Syndicate Meeting)
1) The Borrower or Guarantors terminate or probably will terminate the
operation of their business or any material part of their business,
or the Borrower disposes of its entire business or assets or any
material part of its business or assets, and as a result, the
Borrower's ability to repay the principal and to pay the interest of
the Loan is materially affected;
2) The financial condition of the Borrower or Guarantors experiences
any material adverse change, or their ability to perform the this
Agreement experiences any material adverse change;
3) Material undertakings or substantial guarantee provided by the
Borrower or any material security interest of any form set upon its
business, assets, proceeds, and other aspects;
4) Material undertakings or substantial guarantee provided by the
Guarantors or any material security interest of any form set upon
their business, assets, proceeds, and other aspects, and as a
result, the Guarantors' fulfillment of the guarantee obligation is
thereby materially and adversely affected (excluding the arrangement
under this Agreement).
14.4 In the event of Event of Default, Cross Event of Default, and Anticipatory
Event of Default on the part of the Borrower, or violation of the relevant
stipulations of the negative covenants by the Borrower, the Agency Bank
may, if the Borrower does not make rectifications within TWENTY-EIGHT (28)
Bank Business Days upon receiving the notice of a written request to
rectify such default from the Agency Bank, deliver to the Borrower a
written notice declaring (a) the occurrence of the Event of Default and/or
Anticipatory Event of Default, and (b) that the Loan becomes mature on the
TWENTY-THIRD (23rd) Bank Business Day from Borrower's receipt of such
maturity notice without the need to make a request, deliver a notice or
conduct other legal procedure or other procedure of any kind.
ARTICLE FIFTEEN DEFAULT INTEREST AND COMPENSATION
15.1 Default interest accrues and is calculated and collected on overdue amount
or diverted amount of the Loan, beginning from the date of becoming
overdue or diversion, in accordance with the default interest rate set by
PBOC, until the principal and interest is paid in full. In the event of a
change in default interest
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rate, the interest is calculated in separate periods. Compound interest
accrues and is calculated on a quarterly basis at the default interest
rate on the default interest that is not paid. In the event of certain
amount becoming overdue and being diverted, no cumulative default interest
will be paid and the higher of (a) default interest accrued on the overdue
amount and (b) default interest accrued on the diverted amount, will be
paid by the Borrower.
1) On the date of the execution of this Agreement, the default interest
rate for overdue loan is 0.021 percent per day, and that for
diverted loan is 0.05 percent per day. The method of default
interest calculation is as follows:
i. Default Interest for Overdue Loan = the Principal of the
Overdue Loan x Daily Default Interest Rate for Overdue Loan x
Actual Days Overdue; Interest on Unpaid Default Interest =
Payable Default Interest on Overdue Loan x Daily Default
Interest Rate for Overdue Loan x Actual Days Overdue.
ii. Default Interest for Diverted Amount of the Loan = the
Diverted Principal Amount of the Loan x Daily Default Interest
Rate for Diverted Amount of the Loan x Actual Days Overdue;
Interest on Unpaid Default Interest = Payable Default Interest
on Diverted Amount of the Loan x Daily Default Interest Rate
for Diverted Amount of the Loan x Actual Days Overdue.
iii. The due and unpaid interest is classified into the principal
on the Interest Payment Date.
2) The aforesaid default interest rate for overdue loan and/or diverted
loan as well as the default interest calculation methods are subject
to adjustments from time to time in accordance with the regulations
concerning the default interest rate and default interest
calculation methods promulgated by PBOC from time to time.
15.2 The Borrower shall, through the Agency Bank, compensate the Agency Bank
and Lending Banks the entire actual losses, liabilities, damages, costs
and expenses resulting from any Event of Default on the part of the
Borrower or the Borrower's failure to fulfill its obligations under the
loan documents.
ARTICLE SIXTEEN TRANSFER
16.1 This Agreement shall be binding upon the Borrower, and the Borrower shall
not transfer any right and obligation under this Agreement without prior
unanimous written consent from the Agency Bank and Lending Banks.
16.2 This Agreement shall be binding upon Lending Banks and their successors
and transferees stipulated herein, and one Lending Bank may, at any time,
transfer its entire or part of the rights and interest under this
Agreement and
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other loan documents to another Lending Bank, and the Borrower shall be
notified of such transfer on a timely basis upon the completion of the
transfer; in case the Lending Bank needs to transfer its entire or part of
the rights and interest under this Agreement and other loan documents to
other banks or financial institutions other than the Lending Banks, it
shall obtain a prior written consent from the Borrower (the Borrower shall
not unreasonably withhold such consent), and such written consent shall be
made within TEN (10) Bank Business Days from the receipt of Agency Bank's
notice by the Borrower. In case that the Borrower accepts such transfer,
all agreements, representations, warranties, and covenants made by the
Borrower herein shall apply to the interest of transferees and Lending
Banks.
16.3 The Lending Banks may disclose to the potential transferees or banks
accepting the transferred loan non-public information concerning the
Borrower that the Lending Banks deem it appropriate. However, prior to the
disclosure of such information, the Lending Banks shall, through the
Agency Bank, notify the Borrower in writing, and the Borrower shall,
within FIVE (5) Bank Business Days from receiving the written notice, make
a reply to the Agency Bank regarding whether or not it agrees. In case
that the Borrower does not agree, it shall state the reasons; in case that
the Borrower, within FIVE (5) Bank Business Days from receiving the
written notice, does not make a reply, it shall be deemed to consent.
ARTICLE SEVENTEEN NOTICES
17.1 Notices and requests pursuant to the stipulations herein shall be in
writing and be sent to the following addresses or numbers:
BORROWER: CHINA MOBILE (SHENZHEN) LIMITED
Contact: Liu Li
Address: 10th Flr., Guotong Bldg., 9023 Binhedadao,
Futian District, Shenzhen
Zip: 518048
Tel: 0755-3888010
Fax: 0755-3888011
E-mail: liuli913@21cn.com
JOINT LEAD MANAGERS/JOINT LEAD UNDERWRITERS:
BANK OF CHINA
Contact: Wang Tong/Liu Huijun
Address: No. 410 Fuchengmennei St., Beijing
Zip: 100818
Tel: 010-6601 4077
Fax:010-6601 4037
E-mail:
CONSTRUCTION BANK OF CHINA
Contact: Liang Hongchen/Zhou Xiaoquan
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Address: No. 25 Jinrong Street, Beijing
Zip: 100032
Tel: 010-6759 8754
Fax:010-6759 7333
E-mail: lianghongchen/zh/ccb@ccb.com.cn
AGENCY BANK: BANK OF CHINA, SHENZHEN BRANCH
Contact: Jiang Wenwei/Zhang Wenhao
Address: International Financial Bldg, No. 2022, Jianshe
Rd., Shenzhen, Guangdong
Zip: 518001
Tel: 0755-2288288-2082/2270
Fax: 0755-2259201
E-mail:
GUARANTORS: GUANGDONG MOBILE COMMUNICATION COMPANY LIMITED
Contact: Tan Biying
Address: Quanqiutong Hotel, No. 208 Yuexiunan Rd.,
Guangzhou
Zip: 510100
Tel: 020-8389 9909
Zip: 020-8389 9929
E-mail: tan_by@gmcc.net mail to:tan_by@gmcc.net
ZHEJIANG MOBILE COMMUNICATION COMPANY LIMITED
Contact: Jin Han
Address: No. 406 Tiyuchang Rd., Hangzhou, Zhejiang
Zip: 310006
Tel: 0571-5166048
Zip: 0571-5107903
E-mail: jinhan@zmzz.com.cn
JIANGSU MOBILE COMMUNICATION COMPANY LIMITED
Contact: Ji Xiaoming
Address: No. 51, Huju Rd., Nanjing, Jiangsu
Zip: 210029
Tel: 025-6668163
Zip: 025-6668162
E-mail: jmcccwb@public1.ptt.js.cn
FUJIAN MOBILE COMMUNICATION COMPANY LIMITED
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Contact: Gao Yanghui
Address: No. 59 Wushan Rd., Gulou District, Fuzhou,
Fujian
Zip: 350001
Tel: 0591-3376133
Fax: 0591-3376139
E-mail: luckgyh@21.cn.com
HENAN MOBILE COMMUNICATION COMPANY LIMITED
Contact: Zhang Yuzhong
Address: No. 115 Huanghe Rd., Zhengzhou, Henan
Zip: 450003
Tel: 0371-5956622
Zip: 0371-5968855
E-mail: zyz0129@371.net
HAINAN MOBILE COMMUNICATION COMPANY LIMITED
Contact: Lan Qingchun
Address: No. 22, Nanbao Rd., Haikou, Hainan
Zip: 570125
Tel: 0898-6763132
Zip: 0898-6715461
E-mail: lqc@qmcc.net
17.2 The date of receipt of the aforesaid written notice or request
refers to:
1) If sent by a courier, the date of delivery to the address is the
date of receipt;
2) If delivered by an established express mail service company, the
SECOND (2nd) day after it is submitted to the express mail service
company is the date of receipt; or
3) If transmitted by telex or fax, either the date with the
confirmation from the facsimile machine or the date of sending the
fax is the date of receipt.
The Guarantors may, for the purpose stated herein, through delivering a
notice in writing to the Agency Bank, change their addresses and means of
communication.
ARTICLE EIGHTEEN GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and interpreted in accordance with the
law of the People's Republic of China.
18.2 Any lawsuit arising out of or relating to this Agreement shall be filed at
the people's court where the Joint Lead Managers are located. The parties
hereby
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agree that they will be irrevocably subject to the jurisdiction of such
court.
ARTICLE NINETEEN INSURANCE
19.1 The Borrower and Guarantors shall purchase insurances required by relevant
laws or regulations, competent authorities of the industry, or compulsory
insurances of the industry.
ARTICLE TWENTY OTHER STIPULATIONS
20.1 Amendment and Waiver
Amendment and waiver of any article under this Agreement as well as
waivers to abandon the right to claim against the default under this
Agreement shall be made in writing and be effective only upon the
execution with the official seal stamped by the legal representatives or
authorized signers of the Agency Bank, Lending Banks, and the Borrower.
20.2 Rights/Powers
The failure to exercise or delay to exercise any right, power, decision
power or any other right or power under this Agreement by the Agency Bank
and Lending Banks shall not be deemed as the abandonment of such right,
power or decision power; any separate or partial performance of such
right, power, decision power or any other right or power shall not
restrict the complete or further exercise of such right, power, decision
power or any other right or power; the rights, powers, and remedial
measures stipulated herein are cumulative, not excluding any other rights,
powers, and remedial measures provided by law.
20.3 The Entire Agreement
This Agreement and the loan documents mentioned herein constitute the
entire rights and obligations of the Borrower, Joint Lead Managers, Joint
Lead Underwriters, the Agency Bank, Member Banks, and Lending Banks, and
shall supersede any intent or agreement in connection with this Loan
Arrangement prior to the execution of this Agreement.
20.4 Copies
The Agreement is prepared in EIGHTEEN (18) originals. Each of the Joint
Lead Managers/Joint Lead Underwriters, Member Banks/Lending Banks, the
Agency Bank, the Borrower and Guarantors shall keep one copy. Each
original shall have the same validity. The originals of this Agreement
shall be executed and stamped with the official seals by the formal
authorized representatives of the parties to this Agreement.
20.5 Effectiveness
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37
This Agreement is executed on October 7, 2000, in Beijing. The Agreement
becomes effective on the execution date.
(There is no more text below on this page.)
35
38
IN WITNESS WHEREOF the duly authorized representatives of the Parties hereto
have duly executed this Agreement.
BORROWER: CHINA MOBILE (SHENZHEN) LIMITED
(Official Seal)
Authorized Representative Signature: /s/ Wang Xiaochu
---------------------
JOINT LEAD MANAGERS/JOINT LEAD UNDERWRITERS:
BANK OF CHINA
(Official Seal)
Authorized Representative Signature: /s/ Sun Changji
----------------------
CONSTRUCTION BANK OF CHINA
(Official Seal)
Authorized Representative Signature: /s/ Zhang Enzhao
----------------------
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39
MEMBER BANKS/LENDING BANKS
BANK OF CHINA
(Official Seal)
Authorized Representative Signature: /s/ Sun Changji
----------------------
CONSTRUCTION BANK OF CHINA
(Official Seal)
Authorized Representative Signature: /s/ Zhang Enzhao
---------------------
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40
STATE DEVELOPMENT BANK
(Official Seal)
Authorized Representative Signature: /s/ Ji Qiaoling
----------------------
AGRICULTURE BANK OF CHINA
(Official Seal)
Authorized Representative Signature: /s/ Yang Mingsheng
----------------------
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41
INDUSTRIAL AND COMMERCIAL BANK OF CHINA, SHENZHEN BRANCH
(Official Seal)
Authorized Representative Signature: /s/ Li Lihui
----------------------
BANK OF COMMUNICATIONS
(Official Seal)
Authorized Representative Signature: /s/ Li Jun
---------------------
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42
HONG KONG & SHANGHAI BANKING CORPORATION LTD., SHENZHEN BRANCH
(Official Seal)
Authorized Representative Signature: /s/ Rose Lee Wai Mun
------------------------
CHINA MERCHANTS BANK
(Official Seal)
Authorized Representative Signature: /s/ Chen Xiaoxian
----------------------
40
43
AGENCY BANK
BANK OF CHINA, SHENZHEN BRANCH
(Official Seal)
Authorized Representative Signature: /s/ Zeng Xiaoping
------------------------
41
44
GUARANTOR SIGNATURE PAGE
The signature and stamp on this page are for the sole purpose of the formal
execution of the Syndicated Loan Agreement (RMB 5,000,000,000) on October 7,
2000.
GUARANTOR: GUANGDONG MOBILE COMMUNICATION COMPANY LIMITED
(Official Seal)
Authorized Representative Signature: /s/ Li Gang
--------------------
42
45
GUARANTOR SIGNATURE PAGE
The signature and stamp on this page are for the sole purpose of the formal
execution of the Syndicated Loan Agreement (RMB 5,000,000,000) on October 7,
2000.
GUARANTOR: ZHEJIANG MOBILE COMMUNICATION COMPANY LIMITED
(Official Seal)
Authorized Representative Signature: /s/ Xu Long
-------------------
43
46
GUARANTOR SIGNATURE PAGE
The signature and stamp on this page are for the sole purpose of the formal
execution of the Syndicated Loan Agreement (RMB 5,000,000,000) on October 7,
2000.
GUARANTOR: JIANGSU MOBILE COMMUNICATION COMPANY LIMITED
(Official Seal)
Authorized Representative Signature: /s/ He Ning
-------------------
44
47
GUARANTOR SIGNATURE PAGE
The signature and stamp on this page are for the sole purpose of the formal
execution of the Syndicated Loan Agreement (RMB 5,000,000,000) on October 7,
2000.
GUARANTOR: FUJIAN MOBILE COMMUNICATION COMPANY LIMITED
(Official Seal)
Authorized Representative Signature: /s/ Lin Lixun
--------------------
45
48
GUARANTOR SIGNATURE PAGE
The signature and stamp on this page are for the sole purpose of the formal
execution of the Syndicated Loan Agreement (RMB 5,000,000,000) on October 7,
2000.
GUARANTOR: HENAN MOBILE COMMUNICATION COMPANY LIMITED
(Official Seal)
Authorized Representative Signature: /s/ Lu Jie
--------------------
46
49
GUARANTOR SIGNATURE PAGE
The signature and stamp on this page are for the sole purpose of the formal
execution of the Syndicated Loan Agreement (RMB 5,000,000,000) on October 7,
2000.
GUARANTOR: HAINAN MOBILE COMMUNICATION COMPANY LIMITED
(Official Seal)
Authorized Representative Signature: /s/ Wei Yiping
---------------------
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SCHEDULE ONE LENDING BANKS AND THE CREDIT AMOUNT UNDERTAKEN
LENDING BANKS CREDIT AMOUNT (IN RMB 100
MILLIONS)
BANK OF CHINA 16.4
Contact: Wang Tong/Liu Huijun
Address: No. 410 Fuchengmennei St.,
Beijing
Zip: 100818
Tel: 010-6601 4077
Fax: 010-6601 4037
E-mail: wangtong@bank-of-china.com
CONSTRUCTION BANK OF CHINA 16.4
Contact: Liang Hongchen/Zhou Xiaoquan
Address: No. 25 Jinrong Street, Beijing
Zip: 100032
Tel: 010-6759 8754
Fax: 010-6759 7333
E-mail: lianghongchen/zh/ccb@ccb.com.cn
STATE DEVELOPMENT BANK 4.8
Contact: Yuan Yinghua/Shen Caizhan
Address: No. 29 Fuchengmenwai St.,
Beijing
Zip: 100037
Tel: 010-68306958/68306964
Fax: 010-68306921
E-mail: ofish929@263.net
AGRICULTURE BANK OF CHINA 4.8
Contact: Jiang Haiyang
Address: Jinyu Building, No.100 North
Xisanhuan Road Haidian District, Beijing
Zip: 100036
Tel: 010-6843 5588 ext. 1114
Fax: 010-6843 4303
E-mail:
INDUSTRIAL AND COMMERCIAL BANK OF 4.8
CHINA, SHENZHEN BRANCH
Contact: Zong Jianxin/Liu Yufeng/He Nan
Address: North Bldg., Financial Center,
Shennandong Rd., Shenzhen
Zip: 518015
Tel: 0755-2062755/2068104
Fax: 0755-2060244
E-mail: jxzong@zicn.com
BANK OF COMMUNICATIONS 1.2
Contact: Qian Yong/Huang Linjiang
Address: No. 18 Xianxia Rd., Shanghai
Zip: 200335
Tel: 021-62752243/62751234-2056
Fax: 021-62751363
E-mail: qiangyong2056@21cn.com
HONG KONG & SHANGHAI BANKING 0.8
CORPORATION LTD. SHENZHEN BRANCH
Contact: Yu Guoheng
Address: 1st Flr., Xindu Hotel, No. 1
Chunfeng Rd., Shenzhen
Zip: 518001
Tel: 0755 2338016
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51
LENDING BANKS CREDIT AMOUNT (IN RMB 100
MILLIONS)
Fax: 0755 2324045
E-mail:
CHINA MERCHANTS BANK 0.8
Contact: Zhu Ze
Address: 5th Flr., No. 2
Shennanzhong Rd., Shenzhen
Zip: 518001
Tel: 0755-2090419
Fax: 0755-2096180
E-mail: 00934@oa.cmb.china.com
TOTAL 50
Note: No particular sequence is adopted with regard to the name of the banks
that undertake the same credit amount.
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SCHEDULE TWO LIST OF GUARANTORS
Guangdong Mobile Communication Company Limited
Contact: Tan Biying
Address: Quanqiutong Hotel, No. 208 Yuexiunan Rd., Guangzhou
Zip: 510100
Tel: 020-8389 9909
Zip: 020-8389 9929
E-mail: tan_by@gmcc.net
Zhejiang Mobile Communication Company Limited
Contact: Jin Han
Address: No. 406 Tiyuchang Rd., Hangzhou, Zhejiang
Zip: 310006
Tel: 0571-5166048
Zip: 0571-5107903
E-mail: jinhan@zmcc.com.cn
Jiangsu Mobile Communication Company Limited
Contact: Ji Xiaoming
Address: No. 51, Huju Rd., Nanjing, Jiangsu
Zip: 210029
Tel: 025-6668163
Zip: 025-6668162
E-mail: jmcccwb@public1.ptt.js.cn
Fujian Mobile Communication Company Limited
Contact: Gao Yanghui
Address: No. 59 Wushan Rd., Gulou District, Fuzhou, Fujian
Zip: 350001
Tel: 0591-3376133
Zip: 0591-3376130
E-mail: luckgyh@21.cn.com
Henan Mobile Communication Company Limited
Contact: Zhang Yuzhong
Address: No. 115 Huanghe Rd., Zhengzhou, Henan
Zip: 450003
Tel: 0371-5956622
Zip: 0371-5968855
E-mail: zyz0129@371.net
Hainan Mobile Communication Company Limited
Contact: Lan Qingchun
Address: No. 22, Nanbao Rd., Haikou, Hainan
Zip: 570125
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53
Tel: 0898-6763132
Zip: 0898-6715461
E-mail: lqc@qmcc.net
51
54
SCHEDULE THREE FORM OF DRAWDOWN NOTICE
To: Bank of China, Shenzhen Branch
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 5,000,000,000 LOAN
In accordance with the stipulations under Article Three of the Syndicated
Loan Agreement executed on the date of October 7, 2000, China Mobile (Shenzhen)
Limited (the "Company") has satisfied all the conditions precedent to the
withdrawal and is qualified to withdraw the advancement in any other aspect.
The Company hereby irrevocably notifies you (the "Bank") that the Company
plans to withdraw in one lump sum the Advancement of RMB 5,000,000,000 on the
date of [ ],200[ ] in accordance with the Loan Arrangement and delivers this
notice accordingly. The advancement of the withdrawal shall be paid in
accordance with stipulations under Article Nine of the Agreement.
The Company hereby acknowledge:
(1) No Event of Default or Anticipatory Event of Default occurs on the
part of the Borrower;
(2) All the representations, warranties and Covenants made by the
Borrower in the Agreement are true, correct and effective;
(3) All relevant documents regarding conditions precedent to the
drawdown under Article 3.2, submitted to the Agency Bank by the
Borrower are still true, correct and effective.
Terms used in this notice shall have the same meaning as defined in the
Syndicated Loan Agreement.
China Mobile (Shenzhen) Limited
(Official Seal)
Authorized representative: ______________
[ ], [ ]
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55
SCHEDULE FOUR FORM OF PREPAYMENT NOTICE
To: Bank of China, Shenzhen Branch
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 5,000,000,000 LOAN
In accordance with the stipulations under Article Five of the Syndicated
Loan Agreement executed on the date of October 7, 2000, we plan to repay the
amount of the Loan prior to its maturity to you and hereby irrevocably deliver
this Notice accordingly. The principal of the Prepayment shall be Renminbi
[000,000,000]. Prepayment shall be made on the date of [ ], [ ]. Detailed
arrangement of the prepayment shall be in accordance with Article 5.4 under the
Syndicated Loan Agreement.
We hereby acknowledge:
(1) Representations, warranties and Covenants under Article Eleven and
Twelve are still true and correct on the date of the delivery of the
Notice herein; and
(2) By the date of the delivery of this Notice, there has been no Event
of Default or Anticipatory Event of Default that has not been cured
or corrected.
Terms used in this Notice shall have the some meaning as defined under the
Syndicated Loan Agreement.
China Mobile (Shenzhen) Limited
(Official Seal)
Authorized representative: ______________
[ ], [ ]
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56
SCHEDULE FIVE FORM OF REPLY TO PREPAYMENT NOTICE
To: China Mobile (Shenzhen) Limited
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 5,000,000,000 LOAN
We have received and reviewed the Prepayment Notice you delivered on the
date of [ ], 200[ ]. Terms of prepayment shall be in accordance with the
stipulations under the Syndicated Loan Agreement executed on the date of [ ], of
which:
1. Principal of prepayment shall be _________;
2. As of the prepayment date ( )indicated in the Prepayment Notice, the
due and payable interest on the principal amount of the prepayment
shall be _____;
You shall pay the prepayment principal and its due and payable interest,
____ in full, to our account as follows:
Name of the Bank: [ ]
Account Name: [ ]
Account Number: [ ]
Terms used in this Reply shall have the same meaning as defined under the
Syndicated Loan Agreement.
Bank of China, Shenzhen Branch
(Official Seal)
Authorized representative: _______
[ ],[ ]
54
57
SCHEDULE SIX FORM OF PAYMENT NOTICE
To: China Mobile (Shenzhen) Limited
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 5,000,000,000 LOAN
The Amount you borrowed on the date of October 7, 2000 in accordance with
the Syndicated Loan Agreement will mature on the date of [ ], 200[ ]. In
accordance with the provisions of Article 5.1 of the Syndicated Loan Agreement,
please pay upon maturity of the Loan due principal and interest in full to the
following accounts of the Bank:
Name of Bank: [ ]
Account Title: [ ]
Account Number: [ ]
Of which:
1. Principal payable: [ ]
2. Interest payable: [ ]
Terms used in this Notice shall have the same meaning as defined under the
Syndicated Loan Agreement.
Bank of China, Shenzhen Branch
(Official Seal)
Authorized representative: ______________
[ ],[ ]
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58
SCHEDULE SEVEN FORM OF LETTER OF GUARANTEE
GUARANTEE
To: Bank of China, Construction Bank of China and other Lending Banks
indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB
5,000,000,000) (the "Loan Agreement") executed on the date of October 7, 2000
between China Mobile (Shenzhen) Limited and Bank of China, Construction Bank of
China and other Lending Banks listed in Schedule One of the Syndicated Loan
Agreement (the " Lending Banks").
[ ] Mobile Communication Company Limited (the "Guarantor") is a wholly
foreign-owned limited liability company established and existing under the laws
of the People's Republic of China ("China"), with its registered address of its
headquarter at [ _____ ]. In accordance with Security Law of the People's
Republic of China (the "Security Law") and other relevant laws and regulations,
the Guarantor hereby provides the Lending Banks with a Guarantee in favor of the
Lending Banks and undertakes to perform its obligations in accordance with
stipulations under this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned
limited liability company established and existing under the laws of China, will
execute the Loan Agreement on the same date of the execution of the Letter of
Guarantee. The Loan Agreement Provides that the total amount of the principal of
the loan (the "Loan") granted to the Borrower by the Lending Banks shall not
exceed Renminbi five billion (RMB 5,000,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation
to disburse the Loan under the Loan Agreement is, including but not limited to,
the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in
favor of the Lending Banks issued by the Guarantor, guaranteeing that the
Borrower will pay all the payable sums from time to time to the Lending Banks
through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other
Guarantors, including [ ] Mobile Communication Company Limited, [ ]
Communication Company Limited, [ ] Mobile Communication Company Limited, [ ]
Mobile Communication Company Limited and [ ] Mobile Communication Company
Limited (the "Guarantors") shall assume joint and several liabilities for all
debts, responsibilities and obligations stipulated under the Loan Agreement and
that the Guarantor and the Borrower under the Syndicated Loan Agreement shall
assume joint and several liabilities for all debts, responsibilities and
obligations stipulated under the agreement
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Unless otherwise stipulated, terms used this Letter of Guarantee shall
have the same meaning as defined in the Loan Agreement.
The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities
(similarly hereinafter), the Guarantor and other Guarantors indicated
hereby absolutely and unconditionally guarantee to the Agency Bank and the
Lending Banks that the Borrower shall make payments in full, promptly and
on a timely basis when any part of and/or all the principal, interest,
Default Interest, compensation, fees to satisfy creditor's claim and other
amounts fall due whether pursuant to the provisions, as a result of
accelerated repayment or otherwise in accordance with the stipulations
under the Loan Agreement, and any and/or all of any other relevant
documents and agreements; the Guarantor understands and acknowledges that
in accordance with the Security Law, (1) the Lending Banks may request the
Borrower to perform its liabilities or request the Guarantor to assume its
guarantee liabilities within the limit of the Guarantee in the event that
Borrower under the Guarantee with joint liabilities has not performed its
liabilities before the deadline for performance of the liabilities; i.e.,
upon the Borrower's failure to pay the due and payable sum under the Loan
Agreement and the occurrence of events and circumstances of default, the
Agency Bank may first request payment from the Guarantors who assume joint
liabilities for debts together with the Borrower and need not first
request payment from the Borrower; (2) in the event that two or more than
two Guarantors assume joint guarantee liabilities, the Lending Banks may
request any one of them to assume the entire guarantee liabilities. All
Guarantors shall assume the obligation to guarantee the satisfaction of
the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire
guaranteed obligation on the part of the Borrower, or upon occurrence of
Event of Default or Anticipatory Event of Default, the Guarantors, as
surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the
Borrower (whether as a result of acceleration or otherwise) to the Agency
Bank in favor of the Lending Banks in accordance with instructions of the
Agency Bank, stipulations under the Loan Agreement and in the manner
required thereby. The Guarantors shall not advance any claim, set-off,
counterclaim or defense to the Agency Bank or any Lending Bank regarding
the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default
hereof, if no corrections have been made within the correction period of
twenty eight (28) working days stipulated under Article 14.4 of the Loan
Agreement, the Lending Banks shall be vested the power to deliver Notice
of Claims accompanied with certificates regarding the Borrower's
non-payment of any of the due and payable amount to the Guarantors, who,
upon receipt of the above Notice of Claims, shall perform its guarantee
obligation in accordance with the amount indicated in the Notice of
Claims. Notwithstanding the foregoing, should the loan principal and/or
interest under the Loan Agreement
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not be repaid and/or paid, the Lending Banks shall be vested the power to
deliver Notice of Claims accompanied with certificates regarding the
Borrower's non-payment of such principal and/or interest to the
Guarantors, who, upon receipt of the above Notice, shall perform its
guarantee obligation in accordance with the amount indicated in the Notice
of Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and
shall not be limited or affected by any circumstances, including (but not
limited to) (1) the Borrower's failure to perform or comply with the Loan
Agreement or any stipulations under any such documents or agreements; (2)
transfer by the Borrower for the benefit of the Creditor (not limited to
the Creditor's interest under this Guarantee), request to nominate a
Recipient, Trustee or Liquidator for the Borrower or any of its assets,
upon declaration of liquidation or filing of the request of liquidation on
the part of the Borrower, or any other measures taken for the above
purposes; (3) changes in the Borrower's name, scope of business,
registered capital or organization documents; or (4) any other
circumstances that may constitute a relief of obligations that shall be
assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the
Guarantee, the Loan Agreement or of the payment under any other relevant
guarantees, documents or agreements, however, such negligence or restraint
shall not affect or mitigate the Guarantors' obligations under the
Guarantee herein. Guarantors shall not request the Agency Bank to make
enforcement of the Loan Agreement or any other guarantees as a
prerequisite of the enforcement of the Guarantee herein. The Failure to
enforce the Loan Agreement or any other guarantees shall not affect or
mitigate the Guarantee herein or defend against the Guarantee herein for
such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned
subsidiaries directly or indirectly owned by CMHK in China within the term
of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein
may at any moment be renewed, extended, amended, compromised, exempted or
abandoned by the Agency Bank or Lending Banks upon request of the
Borrower, and such conducts shall not impair or affect the Guarantors'
liabilities under the Guarantee herein; and the guarantee liabilities of
the Guarantors under the Guarantee herein shall also apply to the above
renewal, extension, amendment or compromise by the Agency Bank and Lending
Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the
guaranteed liabilities. However, before the Agency Bank is vested the
power to receive any debts under the guarantee liabilities, it shall have
no obligation to exhaust its right of recourse against the Borrower, nor
shall it have any obligation to exhaust its right of recourse the Agency
Bank or certain Lending Banks may have against any Guarantor or any
guarantee. This Guarantee shall be irrevocable and with full force before
the full performance of the guaranteed obligations and the full payment of
any indebted amount under the guarantee. The Guarantors shall waive the
defense arising from any time limit
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that might affect the obligations hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest
and/or other amounts under the Loan Agreement, the Guarantor shall not
have the right of subrogation obtained as a result of its performance of
any of the guarantee liabilities hereunder. Notwithstanding the foregoing,
in the event that the Guarantor receives any sums as a result of its
entitlement to such right of subrogation while one of the guaranteed
obligations has not been performed, the Guarantor shall agree to pay all
such sums to the Agency Bank to offset the amount over due under
stipulations of the Loan Agreement.
10. The Guarantors agree to pay all fees and charges related to the
enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in
the form of Renminbi and paid by the Guarantors in accordance with the
Guarantee in Renminbi. In any circumstances, Renminbi shall be the
currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and
(1) delivered by special messenger; (2) sent by reputable courier service,
or (3) transmitted by telex or facsimile. The address of the Guarantor:
Name of the Company: [ ], Address: [ ], Postal Code: [ ], Contact: [ ],
Telephone Number: [ ], Fax: [ ], E-mail: [ ]. The date of Notice or
Request referred to herein shall be (1) the day of the receipt thereof if
by delivery by special messenger; (2) the next day following the delivery
to the courier service company if delivered by a creditable courier
service; or (3) the fourth day following the delivery to the postal
service if delivered by post-paid registered mail; (4) the delivery date
with confirmation of acceptance if delivered by telex or facsimile. For
the purpose hereof, the Guarantor may change its address by a written
notice to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successor
and the transferees and may be enforced by the Agency Bank, the Lending
Banks, its successors and transferees. The Guarantor shall have no right
to assign or to otherwise transfer the obligations hereunder. The Lending
Bank may transfer part or all of its rights and interest hereunder to
another Lending Bank at any time, in which case the Guarantor shall be
promptly informed of such a transfer upon completion of the transfer; in
the event that the Lending Bank needs to transfer its rights and interest
hereunder to a bank or financial institution other than the Lending Banks,
the Lending Bank shall obtain the consent of the Guarantors first (which
consent shall not be unreasonably withheld). The Guarantors' Obligations
hereunder shall not be Limited or affected in anyway by the above
assignment or transfer. Any of the above assignment and transfer shall
come into effect and be binding on the Guarantors upon the date of such
assignment or transfer.
14. The Guarantors hereby represent and warrant that:
a) the Guarantors are established and validly existing under the Laws
of
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China, with its registered address as above;
b) the Guarantors have full legal rights, powers and authority to
conduct their existing operations, possess their assets, assume this
Guarantee and other obligations stipulated hereunder, execute and
deliver this Guarantee and to perform and comply with the terms and
conditions hereunder;
c) the Guarantors have taken all appropriate and necessary corporate
and legal actions to authorize the execution and delivery of this
Guarantee and to perform and abide by the stipulations and terms
hereunder;
d) except for the relevant documents already obtained and submitted to
the Agency Bank and the Lending Banks, the execution, delivery,
effectiveness, performance, enforcement, the validity as evidence in
legal proceedings of this Guarantee and the Guarantors' obligations
hereunder do not require further consent from any other governmental
departments or agency or any other shareholders or creditors, or
notification thereto, or registration or filing therewith, or other
actions to be taken;
e) This Guarantee constitutes the legal and valid obligations binding
on the Guarantors and can be enforced in accordance with its
stipulations. The execution, delivery, performance of terms and
conditions hereunder, the payment of all the due and payable amount
in the currency stipulated hereunder on the date indicated herein do
not (1) infringe or violate any stipulations of any applicable laws
of China and other government regulations (with legal validity or
not); (2) violate any government guidelines and policies (with no
legal validity) applicable to the Guarantors; (3) conflict with the
business license of the Guarantors; (4) conflict with any
agreements, debentures, mortgages or other documents other than this
Guarantee to which the Guarantor is a Party or the Guarantor or its
assets is bound, and will not bring about consequences of violation
of any of the stipulations thereof nor create any mortgage, lien,
pledge, security interests or preferential arrangement; (5)
constitute Event of Default under any agreement nor constitute Event
of Default due to delivery of Notice or elapse of time or both;
f) under any agreement to which the Guarantor is a Party or the
Guarantor or its assets is bound, no Event of Default has occurred
on the part of the Guarantor which affects the Guarantor's ability
to pay the full amount payable hereunder;
g) this Guarantee constitutes the Guarantors' direct, unconditional and
comprehensive obligations. With respect to the priority order of the
Guarantor's payment of other loans, liabilities, guarantee or
obligations and all other aspect the Guarantors' obligations
hereunder at least have and will have the priority equal to the
guaranteed loans, liabilities or obligations and other guarantee;
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h) there are no material or possible debts that have potential adverse
impact on the Guarantor's performance of its guarantee obligations
hereunder which has not been disclosed to the Agency Bank or the
Lending Banks by the Guarantor;
i) there are no pending or threatening lawsuit, arbitration or other
proceedings against the Guarantors with the tribunal of arbitration,
the court, governmental agencies or administrative agencies which
may affect the financial status or operation of the Guarantors, or
impair the Guarantors' ability to pay all or part of the payable
amount in accordance with this Guarantee, or affect the validity or
enforcement of this Guarantee in anyway;
j) the Guarantors undertake their business and operations in accordance
with all applicable laws, rules and regulations of China.
15. The Guarantors further warrant that:
a) the Guarantors shall maintain their accounting system in accordance
with the accounting principles stipulated under the laws of China;
b) the Guarantors shall deliver an audited annual financial statement
to the Agency Bank within 120 days after every fiscal year and
deliver an unaudited semi-annual financial statement to the Agency
Bank within 90 days after the first half of every fiscal year;
c) after the execution of this Guarantee, the Guarantors respectively
or along with the Borrower shall appoint one of the top six
international accounting firms to prepare semi-annual consolidated
financial statements of the Guarantors in accordance with the
accounting standards of China and deliver them to the Lending Banks
through the Agency Bank. In the event that the parent company of the
Guarantors, namely China Mobile (Hong Kong) Limited shall arrange
and prepare audited semi-annual financial statements in accordance
with laws of Hong Kong rules of Hong Kong Stock Exchange, the
semi-annual consolidated financial statements of the Guarantors
hereunder shall be audited financial statements; otherwise, the
international accounting firm ranked among the top six international
accounting firms shall prepare unaudited semi-annual consolidated
financial statements of the Guarantors and provide the Agency Bank
with a letter, indicating that the unaudited semi-annual
consolidated financial statements of the Guarantors prepared by the
firm (1) is in accordance with the accounting standards of China;
(2) the preparation method is reasonable and correct. Such
semi-annual consolidated financial statements shall at the same time
be attached with a letter produced by the Guarantors indicating the
truthfulness of the data presented in the financial statements.
Expense incurred in the preparation of the financial statements
shall be borne by the Guarantors and/or the Borrower;
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d) the Guarantors respectively or along with the Borrower shall appoint
one of the top six international accounting firms to prepare
semi-annual consolidated financial statements for the six Guarantors
hereunder and deliver them, through the Agency Bank, to the Lending
Banks. The Guarantors and/or Borrower shall bear the relevant fees
and charges;
e) the Guarantors shall notify the Agency Bank immediately with regard
to the following issues:
i) lawsuit, arbitration or claims in any other forms regarding
any creditor's claim with the total amount exceeding Renminbi
three hundred million (RMB 300,000,000) or with the equivalent
amount in other currencies;
ii) merger with other companies or business institutions;
iii) sales, transfer or other means of disposal of assets or
business of more than Renminbi one billion (RMB
1,000,000,000);
f) the Guarantors shall abide by applicable laws, rules and regulation,
authorities or agreements, perform relevant obligations and pay any
due and payable tax;
g) in the event that the aggregate balance of debt or contingent
liabilities of the Guarantors is less than one hundred and twenty
percent (120%) of the total shareholders' equity, the Guarantors
shall notify the Agency Bank on a timely basis of their material or
possible debts incurred, assumed or newly-established with the
amount of a single item exceeding Renminbi one billion (RMB
1,000,000,000) or debt with equivalent value and immediately provide
the Agency Bank with text of the agreement regarding the material
debt or contingent liabilities; in the event that the aggregated
balance of the debt or contingent liabilities of the Guarantors
exceeds one hundred and twenty percent (120%) of the total
shareholders' equity, the Guarantors shall not incur, assume or
establish any additional debt or contingent liabilities without the
Lending Banks' prior consent. To this end, the Guarantors shall
notify the Agency Bank in writing of the event that the Guarantors
may incur, assume or establish additional debts or contingent
liabilities with attachment of a draft of the agreement regarding
the relevant debts and contingent liabilities. The Agency Bank shall
notify the Guarantors within ten (10) Bank Business Days after
receipt of the above written Notice if the Agency Bank agrees upon
the above debts or contingent liabilities. The Agency Bank's failure
to notify the Guarantors within the above time limit shall be deemed
as consent;
h) the Guarantors will not take any action or procedure for the purpose
of dissolution, liquidation or termination of the business without
the Lending Banks' prior consent;
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i) No other debt or contingent liabilities with higher rank of priority
over the debts and contingent liabilities hereunder in respect of
the order of payment will be created.
16. The validity, presumption and interpretation of this Guarantee and all the
rights, obligations and liabilities arising out of this Guarantee shall be
governed by and interpreted according to the laws of China. Any legal
actions or proceedings taken against the Guarantors or any of their assets
in connection with this Guarantee shall be submitted to the competent
tribunal of economic adjudication of the people's court in Beijing.
17. In the event that any payment under this Guarantee is required to be made
on a Non-Bank Business Day, such payment shall be postponed to the next
Bank Business Day or any other date provided under the Loan Agreement.
18. The Term of the Guarantee herein shall begin from the date of the
execution of the Syndicated Loan Agreement and end on the first
anniversary of the expiry of the Term of the Loan stipulated under the
Syndicated Loan Agreement; in the event that the loan is extended, the
term of the Guarantee shall end on the first anniversary of the expiry of
renewed term of the Loan.
On this basis, the Guarantors have executed this Guarantee in favor of the
Agency Bank and the Lending Banks, which shall come into effect upon execution
of the Letter of Guarantee by the Guarantors and the stamp of their official
seals.
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GUARANTOR SIGNATURE PAGE Re: Provision to the Lending Banks
of irrevocable and unconditional
guarantee with joint liabilities
regarding the Syndicated Loan
Agreement on RMB 5,000,000,000
Loan executed on the date of
October 7, 2000 between China
Mobile (Shenzhen) Limited and Bank
of China, Construction Bank of
China and other Lending Banks
listed in Schedule One of the
Syndicated Loan Agreement.
GUARANTOR: [ ] MOBILE COMMUNICATION COMPANY LIMITED
(OFFICIAL SEAL)
AUTHORIZED REPRESENTATIVE: ________
NAME: _________
TITLE: _______
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SCHEDULE EIGHT FORM OF EXTENSION APPLICATION
To: Bank of China, Construction Bank of China
REGARDING: SYNDICATED LOAN AGREEMENT ON
RENMINBI 5,000,000,000 LOAN
In accordance with the stipulations under Article 5.5 of the Syndicated
Loan Agreement executed on the date of October 7, 2000, we plan to apply for
extension and hereby submit the Application accordingly.
The amount of principal to be extended under this Extension Application
shall be Renminbi [ ]. The extension term shall be [ ]. Interest on the extended
principal amount shall be in accordance with the stipulations under Article 5.5
of the Syndicated Loan Agreement.
We hereby confirm the following:
(1) The representations and warranties under Article 11 and Covenants
under Article 12 are still true and correct in light of the
circumstances on the date of the application;
(2) As of the date of the submission of this Application, there exists
no Event of Default or Anticipatory Event of Default that has not
been cured or corrected; and,
(3) There have been no substantial adverse change within the period from
the date of the execution of the Guarantee to the date of the
submission of this Application with respect to the Guarantee
qualification, guarantee ability and any other conditions of the
Guarantors under the Syndicated Loan Agreement and the Guarantee,
which remain to be in accordance with stipulations regarding the
guarantee qualifications of guarantors under laws and regulations of
China. The Company further understands that the Guarantors shall
continue to maintain this lawful and healthy condition within the
proposed Extension Period.
Terms and Definitions under the Syndicated Loan Agreement shall also be
applicable to this Application.
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China Mobile (Shenzhen) Limited
(Official Seal)
Authorized representative: ______________
The Guarantors hereby acknowledge that the aforesaid
conditions are true and hereby consent to the extension.
Official Seals of all Guarantors:
Legal representatives of all Guarantors:
[ ], 200[ ]
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SCHEDULE NINE FORM OF EXTENSION REPLY
To: China Mobile (Shenzhen) Limited
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 5,000,000,000 LOAN
In accordance with the Syndicated Loan Extension Application you submitted
by on the date of [ ], 200[ ] and acknowledged by all Guarantors, we hereby
agree to the following Loan Extension Arrangement:
1. Amount of the Loan Extended: [ ], of which the respective share of the
extended loan of the Lending Banks are as follows:
Bank of China [Amount]
Construction Bank of China [Amount]
[ ] [Amount]
[ ] [Amount]
[ ] [Amount]
[ ] [Amount]
[ ] [Amount]
[ ] [Amount]
2. Term of Extension: [ ], from [commencing date] to [maturity date]
3. Interest of the Loan Extended shall be [ %] pursuant to the provisions of
Peoples' Bank of China and that of Article 5.5(6) of the Syndicated Loan
Agreement;
4. Other terms of the Extension shall be in accordance with stipulations
under the Syndicated Loan Agreement (RMB 5,000,000,000) between you and us
executed on the date of October 7, 2000;
5. You shall pay [on the commencing date of the Extension] the loan interest
as of the date hereof, with an aggregate amount of Renminbi [ ].
Terms and Definitions under the Syndicated Loan Agreement shall also be
applicable to this Reply.
Bank of China
(Official Seal)
Authorized representative: _____________
Construction Bank of China
(Official Seal)
Authorized representative: _____________
[ ], 200[ ]
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SCHEDULE TEN FORM OF INTEREST PAYMENT NOTICE
To: China Mobile (Shenzhen) Limited
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 5,000,000,000 LOAN
In accordance with Article Six under the Syndicated Loan Agreement, you
shall pay the Loan Interest of Renminbi [ ] on the date of [ ], 200[ ]. Please
pay the due Loan Interest on the above date to the following account of the
Bank:
Name of Bank: [ ]
Account Name: [ ]
Account Number: [ ]
Terms used in this Notice shall have the same meaning as defined under the
Syndicated Loan Agreement.
Bank of China, Shenzhen Branch
(Official seal of)
Authorized representative: ________________
[ ],[ ]
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SCHEDULE ELEVEN FORM OF LEGAL OPINION
ISSUED BY LAWYERS OF THE BORROWER AND GUARANTORS
LEGAL OPINION
TO: BANK OF CHINA
CONSTRUCTION BANK OF CHINA
STATE DEVELOPMENT BANK
AGRICULTURE BANK OF CHINA
INDUSTRIAL AND COMMERCIAL BANK OF CHINA
BANK OF COMMUNICATIONS
HONG KONG & SHANGHAI BANKING CORPORATION LTD., SHENZHEN BRANCH
CHINA MERCHANTS BANK
(THE "LENDING BANKS")
To Whom It May Concern:
RE: ISSUES CONCERNING ARRANGEMENT OF
SYNDICATED LOAN OF RENMINBI 5,000,000,000
AND ARRANGEMENT OF
SYNDICATED LOAN OF RENMINBI 7,500,000, 000
We are lawyers with the Commerce & Finance Law Firm (the "Law Firm"),
which has been licensed by Bureau of Justice of Beijing Municipality to practice
within the territory of the People's Republic of China ("China"). The Law Firm
is qualified to issue this Opinion.
Entrusted by China Mobile (Shenzhen) Limited (the "Borrower") and
Guangdong Mobile Communication Company Limited, Zhejiang Mobile Communication
Company Limited, Jiangsu Mobile Communication Company Limited, Fujian Mobile
Communication Company Limited, Henan Mobile Communication Company Limited and
Hainan Mobile Communication Company Limited (the "Guarantors"), the Law Firm,
being the legal council of the Borrower and the Guarantors in China, issues this
Legal Opinion on relevant issues regarding the captioned Syndicated Loan
Arrangement.
The Lending Banks, the Borrower and the Guarantors have executed a
Syndicated Loan Agreement on Renminbi 5,000,000,000 Loan and a Syndicated Loan
Agreement on Renminbi 7,500,000,000 Loan on October 7, 2000, and the Guarantors
executed Letters of Guarantee in favor of the Lending Banks.
Unless otherwise indicated, terms used in this Opinion shall have the same
meaning as defined under the Syndicated Loan Agreement.
In order to issue this Opinion, we have reviewed all the originals or
copies of the documents relevant to the Borrower and the Lending Banks (see
legal documents and other documents that we deem as necessary for the issuance
of this Opinion in Schedule One attached to this Opinion). The originals or
copies of these documents
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have been provided by the Borrower and the Lending Banks.
The Statement, analysis and conclusion hereunder are made on the following
basis:
1. State and local laws and regulations and government policies of
China;
2. Our practice and experience in similar projects;
3. The originals, photocopies or facsimiles of the above legal
documents regarding the captioned issues.
When reviewing the originals, photocopies or facsimiles of the above
documents, we assume the following:
1. All the handwriting, seals and stamps on the original copies are
genuine and valid, and all the documents provided to us as
photocopies are the same as the originals;
2. All the presentations of the facts in the documents are true and
complete in all respects;
On the basis of the above statement and assumptions, the Law Firm arrives
at the following legal opinions:
1. The Borrower and the Guarantors are limited liability companies
established and validly existing under the laws of China and are qualified
to operate in the territory of China. The Articles of Association of each
of the Borrower and the Guarantors are in accordance with relevant
stipulations under the laws of China and are legal and valid;
2. The registered capital of the Borrower and the Guarantors have been fully
paid up by their investors;
3. The Borrower and the Guarantors are vested sufficient power, authority and
legal rights, and have obtained the consent, approval, authorization order
and registration from all the governmental agencies to own their present
assets and to operate the business which they are operating at present;
4. The Borrower and the Guarantors have obtained all the legal and valid
certificates and licenses relevant to their business operations, including
but not limited to the certificate of approval, business license, tax
registration certificate and foreign exchange registration license;
5. Both the Borrower and the Guarantors have taken all necessary legal
person's and/or other actions, including necessary approvals by their
boards of directors and general meetings of shareholders, to (1) execute
and deliver loan documents, (2) perform their obligations under the loan
documents;
6. Purpose of the loan under the Loan Agreement have been approved by all
relevant governmental agencies and have obtained consent from China Mobile
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Communications Corporation ("CMCC"), China Mobile (Hong Kong) Limited,
China Mobile BVI and the Borrower, including necessary approvals by the
boards of directors and general meetings of shareholders. Purpose of the
loan under the Loan Agreement is legal and valid;
7. The Acquisition Transaction has obtained appropriate approval from
relevant governmental agencies and have obtained consent from CMCC, China
Mobile (Hong Kong) Limited and China Mobile BVI, including necessary
approvals by the boards of directors and general meetings of shareholders;
8. The Loan Agreement shall be binding on the Borrower and the Guarantors
upon signing with official seals affixed and may be enforced upon the
Borrower and the Guarantors in accordance with its stipulations;
9. The Borrower and the Guarantors' execution and delivery of the Loan
Agreement and/or Letter of Guarantee and other loan documents, and the
performance of their obligations under the Loan Agreement and/or Letter of
Guarantee and other loan documents do not (1) violate or infringe any
stipulation under applicable state and local laws and regulations of
China; (2) violate or infringe applicable policies of the Chinese
government; (3) conflict with their business licenses in the case of the
Guarantors; (4) conflict with any agreement, contract or other document to
which the Borrower and the Guarantors are one Party or they or their
assets are bound, and will not bring about consequences of the violation
of any of their stipulations or any mortgage, lien, pledge, security
interests or preferential arrangements created thereunder; (5) constitute
Event of Default under any agreement or constitute Event of Default due to
delivery of Notice or lapse of time or both;
10. The Borrower and the Guarantors' execution and delivery of the Loan
Agreement and/or Letter of Guarantee and other loan documents, and the
performance of their obligations under these loan documents do not require
any other consent, approval, license or authority from governmental
agencies, or consent or approval from any other third party (including
their investors);
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11. In accordance with Interim Provisions Regarding Syndicated Loan
promulgated by People's Bank of China, after the execution of the
Syndicated Loan Agreement, the Agency Bank shall deliver a copy of the
Syndicated Loan Agreement to PBOC for file. Other than this, loan
documents are not required to be delivered to any governmental agency,
court or other agency for registration or the record with a purpose to
make the Loan Agreement valid and enforceable;
12. No security interest in any form that may exert a substantial adverse
effect on the borrowing, utilization and/or repayment of the Loan has been
created on any asset and/or income of the Borrower;
13. The Guarantors are vested the power to provide guarantee to the Lending
Banks. The Guarantors' obligations, under the Guarantee, constitute their
direct, unconditional, several and joint obligations to the Lending Banks
and shall at least have the same priority as any of the Guarantors'
existing and future secured debt and other contingent debts;
14. The Borrower and the Guarantors have all established and implemented an
accounting system in accordance with stipulations under all applicable
laws and regulations and the Generally Accepted Accounting Principle of
China and have been maintaining the continuity of such an accounting
system; all the assets, rights and interests of the Borrower and the
Guarantors or their business operations have been recorded completely on a
timely basis in their respective financial statements; taxes regarding the
Borrower's and the Guarantors' ownership of their assets and business
operations have been declared and fully paid completely and on a timely
basis;
15. Except for stamp tax, the Borrower and the Guarantors have no withholding
tax, income tax, corporate tax or other taxes or expenses Levied on any
payment under the Loan Agreement or the execution, delivery, performance
or enforcement of the Loan Agreement or any other proposed documents; in
accordance with stipulations under the existing Interim Regulations of the
People's Republic of China on Stamp Tax, the Borrower, being one Party to
the Agreement, and all the Lending Banks being the other Party to the
Agreement shall pay a stamp tax at the rate of 0.005 percent to the tax
authorities of China on the amount indicated under the Loan Agreement
regarding the execution and performance of the Loan Agreement. Such stamp
tax shall be paid immediately after the execution of the Loan Agreement
with the official seals affixed to the Agreement;
16. Although the State Administration for Industry and Commerce has
promulgated Interim Provisions Concerning the Proportion between
Registered Capital and Total Investment of Chinese-foreign Equity Joint
Ventures and the supplementary provisions thereunder, all of which are
equally applicable to the Borrower, according to the State Council's reply
Regarding the Acquisition Transactions, if the Loan Arrangement by the
Borrower under the Loan Agreement does not violate stipulations under the
relevant existing and valid laws of China, the loan arrangement made
according to the Loan Agreement shall be legal, valid and enforceable;
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17. Unless otherwise stipulated under the Loan Agreement, consent, approval,
authorization, order, registration and terms required by the laws of China
in relation to the Loan Arrangement covered in the Loan Agreement have all
been made or obtained in writing;
18. Under any agreement to which the Borrower is a Party and the Guarantors
the other, or to which the Borrower and/or the Guarantors or their assets
are bound, the Borrower and/or the Guarantors have not committed any Event
of Default that would impair their ability of performing the obligations
under the Loan Agreement;
19. As of the date hereof, there has been no pending lawsuit, arbitration by
arbitration tribunal or other potential material dispute against the
Borrower and/or the Guarantors that may constitute substantial adverse
effect upon the borrowing, utilization and/or repayment of the Loan by the
Borrower, or upon the financial condition or operation of the Guarantors,
or upon the Guarantors' performance of the guarantee obligations under the
Letter of Guarantee; nor any pending legal or governmental proceedings
against the validity and legality of the Loan or any threat that would
trigger such procedures;
20. The Borrower and the Guarantors shall enjoy no sovereign immunity in the
course of the execution, delivery, performance of the loan documents such
as the Loan Agreement and/or the Letter of Guarantee, and shall not demand
such rights within the terms of such loan documents such as the Loan
Agreement and the Letter of Guarantee;
21. The Opinion shall be of same validity upon its execution and the date of
the withdrawal by the Borrower.
The Opinion herein is issued solely for the purpose of the captioned
Syndicated Loan Arrangement for the benefit of the Lending Banks. The Opinion
can be disclosed to the Lending Banks and the lawyers thereof and may be relied
upon by the Lending Banks and lawyers thereof for the above purpose only. The
Opinion shall not be disclosed to any other person or be used for other purposes
without prior consent of the Law Firm.
COMMERCE & FINANCE LAW FIRM
[ ], 2000
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SCHEDULE ONE CHECKLIST OF DOCUMENTS
I. CHINA MOBILE (SHENZHEN) LIMITED
1 Business license;
2 Legal person code certificate;
3 Certificate of approval for wholly foreign-owned enterprises;
4 Capital Verification Certificate for Capital Contribution;
5 Loan Certificate;
6 Tax Registration Certificate (Local and State Taxes);
7 Foreign Exchange Registration Certificate;
8 Board Resolution regarding the Syndicated Loan;
9 Articles of Association;
10 List of Directors of the Board.
II. CHINA MOBILE (HONG KONG) LIMITED
1. Certificate of Incorporation;
2. Articles of Association;
3. Confirmation Letter with legitimate authorization by China Mobile
(Hong Kong) Limited in accordance with stipulations under the laws
of the place of incorporation and corporate documents of the
company, issued by the Chairman of the Board of Directors of the
company on behalf of the Board to the effect that Borrower's
financing arrangement in accordance with the terms and conditions
under of the Syndicated Loan Agreement and the Guarantors' guarantee
arrangement in the accordance with the Form of Letter of Guarantee
under Schedule Seven of the Loan Agreement;
4. Other relevant documents, particularly the Legal Opinion issued by
the Chinese lawyers retained by the Borrower and the Guarantors
regarding the State Council's reply concerning Acquisition
Transactions (including the reply concerning this Loan Arrangement)
and the reply by China Securities Regulatory Commission;
III. THE GUARANTORS
1. Business license;
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2. Legal person code certificate
3. Certificate of approval for wholly foreign-owned enterprises;
4. Capital Verification Certificate for Capital Contribution;
5. Tax Registration Certificate (Local and State Taxes);
6. Foreign Exchange Registration Certificate;
7. Board resolution regarding its consent to guarantee the Syndicate
Loan;
8. Letter of Authorization by the Board of Directors to authorize
[signer] to execute the Syndicated Loan Agreement, the Letter of
Guarantee and other loan documents on behalf of the company;
9. Articles of Association;
10. List of Directors of the Board;
11. Material debts and contingent liabilities;
IV. CHINA MOBILE BVI
1. Resolution by the General Meeting of Shareholders or the Board of
Directors regarding approval of the sale of the interests of the
mobile communications companies in the seven provinces,
municipalities and autonomous region.
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SCHEDULE TWELVE FORM OF LEGAL OPINION
ISSUED BY LAWYER OF THE LENDING BANKS
LEGAL OPINION
TO: BANK OF CHINA
CONSTRUCTION BANK OF CHINA
STATE DEVELOPMENT BANK
AGRICULTURE BANK OF CHINA
INDUSTRIAL AND COMMERCIAL BANK OF CHINA
BANK OF COMMUNICATIONS
HONG KONG & SHANGHAI BANKING CORPORATION LTD., SHENZHEN BRANCH
CHINA MERCHANTS BANK
(THE "LENDING BANKS")
To Whom It May Concern:
RE: ISSUES CONCERNING ARRANGEMENT OF
SYNDICATED LOAN AGREEMENT OF RENMINBI 5,000,000,000
AND ARRANGEMENT OF
SYNDICATED LOAN OF RENMINBI 7,500,000,000
We are lawyers with the Jingtian & Gongcheng Law Firm (the "Law Firm"),
which has been licensed by Bureau of Justice of Beijing Municipality to practice
within the territory of the People's Republic of China ("China"). The Law Firm
is qualified to issue this Opinion.
Entrusted by Lending Banks, the Law Firm issued the Legal Opinion herein
regarding relevant issues on the captioned Syndicated Loan Arrangement, with
China Mobile (Shenzhen) Limited (the "Borrower") as the Borrower and Guangdong
Mobile Communication Company Limited, Zhejiang Mobile Communication Company
Limited, Jiangsu Mobile Communication Company Limited, Fujian Mobile
Communication Company Limited, Henan Mobile Communication Company Limited and
Hainan Mobile Communication Company Limited (the "Guarantors") as the
Guarantors.
On October 7, 2000, the Lending Banks, the Borrower and the Guarantors
executed a Syndicated Loan Agreement on Renminbi 5,000,000,000 Loan and a
Syndicated Loan Agreement on Renminbi 7,500,000,000 Loan and the guarantors
executed Letters of Guarantee in favor of the Lending Banks under the Syndicated
Loan.
Unless otherwise indicated, terms used in this Opinion shall have the same
meaning as defined under the Syndicated Loan Agreement.
In order to issue this Opinion, we have reviewed all the originals or
copies of the documents relevant to the Borrower and the Lending Banks (see
legal documents and other documents that we deem as necessary for the issuance
of this Opinion in Schedule One attached to this Opinion). The originals or
copies of these documents
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have been provided by the Borrower and the Lending Banks.
The Statement, analysis and conclusion hereunder are made on the following
basis:
1. State and local laws and regulations and government policies of China;
2. Our practice and experience in similar projects;
3. The originals, photocopies or facsimiles of the above legal documents
regarding the captioned issues.
When reviewing the originals, photocopies or facsimiles of the above
documents, we assume the following:
1. All the handwriting, seals and stamps on the original copies are genuine
and valid, and all the documents provided to us as photocopies are the
same as the originals;
2. All the presentations of the facts in the documents are true and complete
in all respects;
On the basis of the above statement and assumptions, the Law Firm arrives
at the following legal opinions:
1. The Borrower and the Guarantors are limited liability companies
established and validly existing under the laws of China and are qualified
to operate in the territory of China. The Articles of Association of each
of the Borrower and the Guarantors are in accordance with relevant
stipulations under the laws of China and are legal and valid;
2. The registered capital of the Borrower and the Guarantors have been fully
paid up by their investors;
3. The Borrower and the Guarantors are vested sufficient power, authority and
legal rights, and have obtained the consent, approval, authorization order
and registration from all the governmental agencies to own their present
assets and to operate the business which they are operating at present;
4. The Borrower and the Guarantors have obtained all the legal and valid
certificates and licenses relevant to their business operations, including
but not limited to the certificate of approval, business license, tax
registration certificate and foreign exchange registration license;
5. Both the Borrower and the Guarantors have taken all necessary legal
person's and/or other actions, including necessary approvals by their
boards of directors and general meetings of shareholders, to (1) execute
and deliver loan documents, (2) perform their obligations under the loan
documents;
6. Purpose of the loan under the Loan Agreement have been approved by all
relevant governmental agencies and have obtained consent from China Mobile
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Communications Corporation ("CMCC"), China Mobile (Hong Kong) Limited,
China Mobile BVI and the Borrower, including necessary approvals by the
boards of directors and general meetings of shareholders. Purpose of the
loan under the Loan Agreement is legal and valid;
7. The Acquisition Transaction has obtained appropriate approval from
relevant governmental agencies and have obtained consent from CMCC, China
Mobile (Hong Kong) Limited and China Mobile BVI, including necessary
approvals by the boards of directors and general meetings of shareholders;
8. The Loan Agreement shall be binding on the Borrower and the Guarantors
upon signing with official seals affixed and may be enforced upon the
Borrower and the Guarantors in accordance with its stipulations;
9. The Borrower and the Guarantors' execution and delivery of the Loan
Agreement and/or Letter of Guarantee and other loan documents, and the
performance of their obligations under the Loan Agreement and/or Letter of
Guarantee and other loan documents do not (1) violate or infringe any
stipulation under applicable state and local laws and regulations of
China; (2) violate or infringe applicable policies of the Chinese
government; (3) conflict with their business licenses in the case of the
Guarantors; (4) conflict with any agreement, contract or other document to
which the Borrower and the Guarantors are one Party or they or their
assets are bound, and will not bring about consequences of the violation
of any of their stipulations or any mortgage, lien, pledge, security
interests or preferential arrangements created thereunder; (5) constitute
Event of Default under any agreement or constitute Event of Default due to
delivery of Notice or lapse of time or both;
10. The Borrower and the Guarantors' execution and delivery of the Loan
Agreement and/or Letter of Guarantee and other loan documents, and the
performance of their obligations under these loan documents do not require
any other consent, approval, license or authority from governmental
agencies, or consent or approval from any other third party (including
their investors);
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11. In accordance with Interim Provisions Regarding Syndicated Loan
promulgated by People's Bank of China, after the execution of the
Syndicated Loan Agreement, the Agency Bank shall deliver a copy of the
Syndicated Loan Agreement to PBOC for file, and the filing has been
completed. Other than this, loan documents are not required to be
delivered to any governmental agency, court or other agency for
registration or the record with a purpose to make the Loan Agreement valid
and enforceable;
12. No security interest in any form that may exert a substantial adverse
effect on the borrowing, utilization and/or repayment of the Loan has been
created on any asset and/or income of the Borrower;
13. The Guarantors are vested the power to provide guarantee to the Lending
Banks. The Guarantors' obligations, under the Guarantee, constitute their
direct, unconditional, several and joint obligations to the Lending Banks
and shall at least have the same priority as any of the Guarantors'
existing and future secured debt and other contingent debts;
14. The Borrower and the Guarantors have all established and implemented an
accounting system in accordance with stipulations under all applicable
laws and regulations and the Generally Accepted Accounting Principle of
China and have been maintaining the continuity of such an accounting
system; all the assets, rights and interests of the Borrower and the
Guarantors or their business operations have been recorded completely on a
timely basis in their respective financial statements; taxes regarding the
Borrower's and the Guarantors' ownership of their assets and business
operations have been declared and fully paid completely and on a timely
basis;
15. Except for stamp tax, the Borrower and the Guarantors have no withholding
tax, income tax, corporate tax or other taxes or expenses Levied on any
payment under the Loan Agreement or the execution, delivery, performance
or enforcement of the Loan Agreement or any other proposed documents; in
accordance with stipulations under the existing Interim Regulations of the
People's Republic of China on Stamp Tax, the Borrower, being one Party to
the Agreement, and all the Lending Banks being the other Party to the
Agreement shall pay a stamp tax at the rate of 0.005 percent to the tax
authorities of China on the amount indicated under the Loan Agreement
regarding the execution and performance of the Loan Agreement. Such stamp
tax shall be paid immediately after the execution of the Loan Agreement
with the official seals affixed to the Agreement;
16. Although the State Administration for Industry and Commerce has
promulgated Interim Provisions Concerning the Proportion between
Registered Capital and Total Investment of Chinese-foreign Equity Joint
Ventures and the supplementary provisions thereunder, all of which are
equally applicable to the Borrower, according to the State Council's reply
Regarding the Acquisition Transactions, if the Loan Arrangement by the
Borrower under the Loan Agreement does not violate stipulations under the
relevant existing and valid laws of China, the loan arrangement made
according to the Loan Agreement shall be legal, valid and enforceable;
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17. Unless otherwise stipulated under the Loan Agreement, consent, approval,
authorization, order, registration and terms required by the laws of China
in relation to the Loan Arrangement covered in the Loan Agreement have all
been made or obtained in writing;
18. Under any agreement to which the Borrower is a Party and the Guarantors
the other, or to which the Borrower and/or the Guarantors or their assets
are bound, the Borrower and/or the Guarantors have not committed any Event
of Default that would impair their ability of performing the obligations
under the Loan Agreement;
19. As of the date hereof, there has been no pending lawsuit, arbitration by
arbitration tribunal or other potential material dispute against the
Borrower and/or the Guarantors that may constitute substantial adverse
effect upon the borrowing, utilization and/or repayment of the Loan by the
Borrower, or upon the financial condition or operation of the Guarantors,
or upon the Guarantors' performance of the guarantee obligations under the
Letter of Guarantee; nor any pending legal or governmental proceedings
against the validity and legality of the Loan or any threat that would
trigger such procedures;
20. The Borrower and the Guarantors shall enjoy no sovereign immunity in the
course of the execution, delivery, performance of the loan documents such
as the Loan Agreement and/or the Letter of Guarantee, and shall not demand
such rights within the terms of such loan documents such as the Loan
Agreement and the Letter of Guarantee;
This Opinion is issued solely for the purpose of the captioned Syndicated
Loan Arrangement for the benefit of the Lending Banks. The Opinion issued by the
Law Firm herein is based on the Legal Opinion issued on [ ______ ], 2000 by
Commerce & Finance Law Firm, which is the Chinese legal council of the Borrower
and the Guarantors. The Opinion may be relied upon by the Lending Banks for the
above purpose only. This Opinion shall not be disclosed to any other person or
be used for other purposes without the prior consent of the Law Firm.
JINGTIAN & GONGCHENG LAW FIRM
[ ], 2000
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ANNEX A: CHECKLIST OF DOCUMENTS
I. CHINA MOBILE (SHENZHEN) LIMITED
1. Business license;
2. Legal person code certificate;
3. Certificate of approval for wholly foreign-owned enterprises;
4. Capital Verification Certificate for Capital Contribution;
5. Loan Certificate;
6. Tax Registration Certificate (Local and State Taxes);
7. Foreign Exchange Registration Certificate;
8. Board Resolution regarding the Syndicated Loan;
9. Articles of Association;
10. List of Directors of the Board.
II. CHINA MOBILE (HONG KONG) LIMITED
1. Certificate of Incorporation;
2. Articles of Association;
3. Confirmation Letter with legitimate authorization by China Mobile
(Hong Kong) Limited in accordance with stipulations under the laws
of the place of incorporation and corporate documents of the
company, issued by the Chairman of the Board of Directors of the
company on behalf of China Mobile (Hong Kong) Limited to the effect
that Borrower's financing arrangement in accordance with the terms
and conditions under of the Syndicated Loan Agreement and the
Guarantors' guarantee arrangement in the accordance with the Form of
Letter of Guarantee under Schedule Seven of the Loan Agreement;
4. Other relevant documents, particularly the Legal Opinion issued by
the Chinese lawyers retained by the Borrower and the Guarantors
regarding the State Council's reply concerning Acquisition
Transactions (including the reply concerning this Loan Arrangement)
and the reply by China Securities Regulatory Commission;
III. THE GUARANTORS
1. Business license;
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2. Legal person code certificate
3. Certificate of approval for wholly foreign-owned enterprises;
4. Capital Verification Certificate for Capital Contribution;
5. Tax Registration Certificate (Local and State Taxes);
6. Foreign Exchange Registration Certificate;
7. Board resolution regarding its consent to guarantee the Syndicated
Loan;
8. Letter of Authorization by the Board of Directors to authorize
[signer] to execute the Syndicated Loan Agreement, the Letter of
Guarantee and other loan documents on behalf of the company;
9. Articles of Association;
10. List of Directors of the Board;
11. Material debts and contingent liabilities;
IV. CHINA MOBILE BVI
1. Resolution by the General Meeting of Shareholders or the Board of
Directors regarding approval of the sale of the interests of the
mobile communications companies in the seven provinces,
municipalities and autonomous region.
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GUARANTEE
To: Bank of China, Construction Bank of China and other Lending Banks
indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB
5,000,000,000) (the "Loan Agreement") executed on the date of October 7, 2000
between China Mobile (Shenzhen) Limited and Bank of China, Construction Bank of
China and other Lending Banks listed in Schedule One of the Syndicated Loan
Agreement (the " Lending Banks").
Guangdong Mobile Communication Company Limited (the "Guarantor") is a
wholly foreign-owned limited liability company established and existing under
the laws of the People's Republic of China ("China"), with its registered
address of its headquarter at Quanqiutong Hotel, No. 208 Yuexiunan Rd.,
Guangzhou. In accordance with Security Law of the People's Republic of China
(the "Security Law") and other relevant laws and regulations, the Guarantor
hereby provides the Lending Banks with a Guarantee in favor of the Lending Banks
and undertakes to perform its obligations in accordance with stipulations under
this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned
limited liability company established and existing under the laws of China, will
execute the Loan Agreement on the same date of the execution of the Letter of
Guarantee. The Loan Agreement Provides that the total amount of the principal of
the loan (the "Loan") granted to the Borrower by the Lending Banks shall not
exceed Renminbi five billion (RMB 5,000,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation
to disburse the Loan under the Loan Agreement is, including but not limited to,
the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in
favor of the Lending Banks issued by the Guarantor, guaranteeing that the
Borrower will pay all the payable sums from time to time to the Lending Banks
through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other
Guarantors, including Zhejiang Mobile Communication Company Limited, Jiangsu
Communication Company Limited, Fujian Mobile Communication Company Limited,
Henan Mobile Communication Company Limited and Hainan Mobile Communication
Company Limited (the "Guarantors") shall assume joint and several liabilities
for all debts, responsibilities and obligations stipulated under the Loan
Agreement, and that the Guarantor and the Borrower under the Syndicated Loan
Agreement shall assume joint and several liabilities for all debts,
responsibilities and obligations stipulated under the agreement
Unless otherwise stipulated, terms used this Letter of Guarantee shall
have the same meaning as defined in the Loan Agreement.
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The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities
(similarly hereinafter), the Guarantor and other Guarantors indicated
hereby absolutely and unconditionally guarantee to the Agency Bank and the
Lending Banks that the Borrower shall make payments in full, promptly and
on a timely basis when any part of and/or all the principal, interest,
Default Interest, compensation, fees to satisfy creditor's claim and other
amounts fall due whether pursuant to the provisions, as a result of
accelerated repayment or otherwise in accordance with the stipulations
under the Loan Agreement, and any and/or all of any other relevant
documents and agreements; the Guarantor understands and acknowledges that
in accordance with the Security Law, (1) the Lending Banks may request the
Borrower to perform its liabilities or request the Guarantor to assume its
guarantee liabilities within the limit of the Guarantee in the event that
Borrower under the Guarantee with joint liabilities has not performed its
liabilities before the deadline for performance of the liabilities; i.e.,
upon the Borrower's failure to pay the due and payable sum under the Loan
Agreement and the occurrence of events and circumstances of default, the
Agency Bank may first request payment from the Guarantors who assume joint
liabilities for debts together with the Borrower and need not first
request payment from the Borrower; (2) in the event that two or more than
two Guarantors assume joint guarantee liabilities, the Lending Banks may
request any one of them to assume the entire guarantee liabilities. All
Guarantors shall assume the obligation to guarantee the satisfaction of
the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire
guaranteed obligation on the part of the Borrower, or upon occurrence of
Event of Default or Anticipatory Event of Default, the Guarantors, as
surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the
Borrower (whether as a result of acceleration or otherwise) to the Agency
Bank in favor of the Lending Banks in accordance with instructions of the
Agency Bank, stipulations under the Loan Agreement and in the manner
required thereby. The Guarantors shall not advance any claim, set-off,
counterclaim or defense to the Agency Bank or any Lending Bank regarding
the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default
hereof, if no corrections have been made within the correction period of
twenty eight (28) working days stipulated under Article 14.4 of the Loan
Agreement, the Lending Banks shall be vested the power to deliver Notice
of Claims accompanied with certificates regarding the Borrower's
non-payment of any of the due and payable amount to the Guarantors, who,
upon receipt of the above Notice of Claims, shall perform its guarantee
obligation in accordance with the amount indicated in the Notice of
Claims. Notwithstanding the foregoing, should the loan principal and/or
interest under the Loan Agreement not be repaid and/or paid, the Lending
Banks shall be vested the power to deliver Notice of Claims accompanied
with certificates regarding the Borrower's non-payment of such principal
and/or interest to the Guarantors, who, upon receipt of the above Notice,
shall perform its guarantee obligation in accordance with the amount
indicated in the Notice of
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Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and
shall not be limited or affected by any circumstances, including (but not
limited to) (1) the Borrower's failure to perform or comply with the Loan
Agreement or any stipulations under any such documents or agreements; (2)
transfer by the Borrower for the benefit of the Creditor (not limited to
the Creditor's interest under this Guarantee), request to nominate a
Recipient, Trustee or Liquidator for the Borrower or any of its assets,
upon declaration of liquidation or filing of the request of liquidation on
the part of the Borrower, or any other measures taken for the above
purposes; (3) changes in the Borrower's name, scope of business,
registered capital or organization documents; or (4) any other
circumstances that may constitute a relief of obligations that shall be
assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the
Guarantee, the Loan Agreement or of the payment under any other relevant
guarantees, documents or agreements, however, such negligence or restraint
shall not affect or mitigate the Guarantors' obligations under the
Guarantee herein. Guarantors shall not request the Agency Bank to make
enforcement of the Loan Agreement or any other guarantees as a
prerequisite of the enforcement of the Guarantee herein. The Failure to
enforce the Loan Agreement or any other guarantees shall not affect or
mitigate the Guarantee herein or defend against the Guarantee herein for
such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned
subsidiaries directly or indirectly owned by China Mobile (Hong Kong)
Limited in China within the term of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein
may at any moment be renewed, extended, amended, compromised, exempted or
abandoned by the Agency Bank or Lending Banks upon request of the
Borrower, and such conducts shall not impair or affect the Guarantors'
liabilities under the Guarantee herein; and the guarantee liabilities of
the Guarantors under the Guarantee herein shall also apply to the above
renewal, extension, amendment or compromise by the Agency Bank and Lending
Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the
guaranteed liabilities. However, before the Agency Bank is vested the
power to receive any debts under the guarantee liabilities, it shall have
no obligation to exhaust its right of recourse against the Borrower, nor
shall it have any obligation to exhaust its right of recourse the Agency
Bank or certain Lending Banks may have against any Guarantor or any
guarantee. This Guarantee shall be irrevocable and with full force before
the full performance of the guaranteed obligations and the full payment of
any indebted amount under the guarantee. The Guarantors shall waive the
defense arising from any time limit that might affect the obligations
hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest
and/or other amounts under the Loan Agreement, the Guarantor shall not
have the right of subrogation obtained as a result of its performance of
any of the guarantee
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liabilities hereunder. Notwithstanding the foregoing, in the event that
the Guarantor receives any sums as a result of its entitlement to such
right of subrogation while one of the guaranteed obligations has not been
performed, the Guarantor shall agree to pay all such sums to the Agency
Bank to offset the amount over due under stipulations of the Loan
Agreement.
10. The Guarantors agree to pay all fees and charges related to the
enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in
the form of Renminbi and paid by the Guarantors in accordance with the
Guarantee in Renminbi. In any circumstances, Renminbi shall be the
currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and
(1) delivered by special messenger; (2) sent by reputable courier service,
or (3) transmitted by telex or facsimile. The address of the Guarantor:
Name of the Company:Guangdong Mobile Communication Company Limited.,
Address: Quanqiutong Hotel, No. 208 Yuexiunan RD, Guangzhou, Postal Code:
510100, Contact: Tan Biying, Telephone Number: 020-8389 9909, Fax:
020-8389 9929, E-mail: tan_by@gmcc.net. The date of Notice or Request
referred to herein shall be (1) the day of the receipt thereof if by
delivery by special messenger; (2) the next day following the delivery to
the courier service company if delivered by a creditable courier service;
or (3) the fourth day following the delivery to the postal service if
delivered by post-paid registered mail; (4) the delivery date with
confirmation of acceptance if delivered by telex or facsimile. For the
purpose hereof, the Guarantor may change its address by a written notice
to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successor
and the transferees and may be enforced by the Agency Bank, the Lending
Banks, its successors and transferees. The Guarantor shall have no right
to assign or to otherwise transfer the obligations hereunder. The Lending
Bank may transfer part or all of its rights and interest hereunder to
another Lending Bank at any time, in which case the Guarantor shall be
promptly informed of such a transfer upon completion of the transfer; in
the event that the Lending Bank needs to transfer its rights and interest
hereunder to a bank or financial institution other than the Lending Banks,
the Lending Bank shall obtain the consent of the Guarantors first (which
consent shall not be unreasonably withheld). The Guarantors' Obligations
hereunder shall not be Limited or affected in anyway by the above
assignment or transfer. Any of the above assignment and transfer shall
come into effect and be binding on the Guarantors upon the date of such
assignment or transfer.
14. The Guarantors hereby represent and warrant that:
a) the Guarantors are established and validly existing under the Laws
of China, with its registered address as above;
b) the Guarantors have full legal rights, powers and authority to
conduct their existing operations, possess their assets, assume this
Guarantee and other
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obligations stipulated hereunder, execute and deliver this Guarantee
and to perform and comply with the terms and conditions hereunder;
c) the Guarantors have taken all appropriate and necessary corporate
and legal actions to authorize the execution and delivery of this
Guarantee and to perform and abide by the stipulations and terms
hereunder;
d) except for the relevant documents already obtained and submitted to
the Agency Bank and the Lending Banks, the execution, delivery,
effectiveness, performance, enforcement, the validity as evidence in
legal proceedings of this Guarantee and the Guarantors' obligations
hereunder do not require further consent from any other governmental
departments or agency or any other shareholders or creditors, or
notification thereto, or registration or filing therewith, or other
actions to be taken;
e) This Guarantee constitutes the legal and valid obligations binding
on the Guarantors and can be enforced in accordance with its
stipulations. The execution, delivery, performance of terms and
conditions hereunder, the payment of all the due and payable amount
in the currency stipulated hereunder on the date indicated herein do
not (1) infringe or violate any stipulations of any applicable laws
of China and other government regulations (with legal validity or
not); (2) violate any government guidelines and policies (with no
legal validity) applicable to the Guarantors; (3) conflict with the
business license of the Guarantors; (4) conflict with any
agreements, debentures, mortgages or other documents other than this
Guarantee to which the Guarantor is a Party or the Guarantor or its
assets is bound, and will not bring about consequences of violation
of any of the stipulations thereof nor create any mortgage, lien,
pledge, security interests or preferential arrangement; (5)
constitute Event of Default under any agreement nor constitute Event
of Default due to delivery of Notice or elapse of time or both;
f) under any agreement to which the Guarantor is a Party or the
Guarantor or its assets is bound, no Event of Default has occurred
on the part of the Guarantor which affects the Guarantor's ability
to pay the full amount payable hereunder;
g) this Guarantee constitutes the Guarantors' direct, unconditional and
comprehensive obligations. With respect to the priority order of the
Guarantor's payment of other loans, liabilities, guarantee or
obligations and all other aspect the Guarantors' obligations
hereunder at least have and will have the priority equal to the
guaranteed loans, liabilities or obligations and other guarantee;
h) there are no material or possible debts that have potential adverse
impact on the Guarantor's performance of its guarantee obligations
hereunder which has not been disclosed to the Agency Bank or the
Lending Banks by the Guarantor;
i) there are no pending or threatening lawsuit, arbitration or other
proceedings
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against the Guarantors with the tribunal of arbitration, the court,
governmental agencies or administrative agencies which may affect
the financial status or operation of the Guarantors, or impair the
Guarantors' ability to pay all or part of the payable amount in
accordance with this Guarantee, or affect the validity or
enforcement of this Guarantee in anyway;
j) the Guarantors undertake their business and operations in accordance
with all applicable laws, rules and regulations of China.
15. The Guarantors further warrant that:
a) the Guarantors shall maintain their accounting system in accordance
with the accounting principles stipulated under the laws of China;
b) the Guarantors shall deliver an audited annual financial statement
to the Agency Bank within 120 days after every fiscal year and
deliver an unaudited semi-annual financial statement to the Agency
Bank within 90 days after the first half of every fiscal year;
c) after the execution of this Guarantee, the Guarantors respectively
or along with the Borrower shall appoint one of the top six
international accounting firms to prepare semi-annual consolidated
financial statements of the Guarantors in accordance with the
accounting standards of China and deliver them to the Lending Banks
through the Agency Bank. In the event that the parent company of the
Guarantors, namely China Mobile (Hong Kong) Limited shall arrange
and prepare audited semi-annual financial statements in accordance
with laws of Hong Kong rules of Hong Kong Stock Exchange, the
semi-annual consolidated financial statements of the Guarantors
hereunder shall be audited financial statements; otherwise, the
international accounting firm ranked among the top six international
accounting firms shall prepare unaudited semi-annual consolidated
financial statements of the Guarantors and provide the Agency Bank
with a letter, indicating that the unaudited semi-annual
consolidated financial statements of the Guarantors prepared by the
firm (1) is in accordance with the accounting standards of China;
(2) the preparation method is reasonable and correct. Such
semi-annual consolidated financial statements shall at the same time
be attached with a letter produced by the Guarantors indicating the
truthfulness of the data presented in the financial statements.
Expense incurred in the preparation of the financial statements
shall be borne by the Guarantors and/or the Borrower;
d) the Guarantors respectively or along with the Borrower shall appoint
one of the top six international accounting firms to prepare
semi-annual consolidated financial statements for the six Guarantors
hereunder and deliver them, through the Agency Bank, to the Lending
Banks. The Guarantors and/or Borrower shall bear the relevant fees
and charges;
e) the Guarantors shall notify the Agency Bank immediately with regard
to the following issues:
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i) lawsuit, arbitration or claims in any other forms regarding
any creditor's claim with the total amount exceeding Renminbi
three hundred million (RMB 300,000,000) or with the equivalent
amount in other currencies;
ii) merger with other companies or business institutions;
iii) sales, transfer or other means of disposal of assets or
business of more than Renminbi one billion (RMB
1,000,000,000);
f) the Guarantors shall abide by applicable laws, rules and regulation,
authorities or agreements, perform relevant obligations and pay any
due and payable tax;
g) in the event that the aggregate balance of debt or contingent
liabilities of the Guarantors is less than one hundred and twenty
percent (120%) of the total shareholders' equity, the Guarantors
shall notify the Agency Bank on a timely basis of their material or
possible debts incurred, assumed or newly-established with the
amount of a single item exceeding Renminbi one billion (RMB
1,000,000,000) or debt with equivalent value and immediately provide
the Agency Bank with text of the agreement regarding the material
debt or contingent liabilities; in the event that the aggregated
balance of the debt or contingent liabilities of the Guarantors
exceeds one hundred and twenty percent (120%) of the total
shareholders' equity, the Guarantors shall not incur, assume or
establish any additional debt or contingent liabilities without the
Lending Banks' prior consent. To this end, the Guarantors shall
notify the Agency Bank in writing of the event that the Guarantors
may incur, assume or establish additional debts or contingent
liabilities with attachment of a draft of the agreement regarding
the relevant debts and contingent liabilities. The Agency Bank shall
notify the Guarantors within ten (10) Bank Business Days after
receipt of the above written Notice if the Agency Bank agrees upon
the above debts or contingent liabilities. The Agency Bank's failure
to notify the Guarantors within the above time limit shall be deemed
as consent;
h) the Guarantors will not take any action or procedure for the purpose
of dissolution, liquidation or termination of the business without
the Lending Banks' prior consent;
i) No other debt or contingent liabilities with higher rank of priority
over the debts and contingent liabilities hereunder in respect of
the order of payment will be created.
16. The validity, presumption and interpretation of this Guarantee and all the
rights, obligations and liabilities arising out of this Guarantee shall be
governed by and interpreted according to the laws of China. Any legal
actions or proceedings taken against the Guarantors or any of their assets
in connection with this Guarantee shall be submitted to the competent
tribunal of economic adjudication of the people's court in Beijing.
17. In the event that any payment under this Guarantee is required to be made
on a
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Non-Bank Business Day, such payment shall be postponed to the next Bank
Business Day or any other date provided under the Loan Agreement.
18. The Term of the Guarantee herein shall begin from the date of the
execution of the Syndicated Loan Agreement and end on the first
anniversary of the expiry of the Term of the Loan stipulated under the
Syndicated Loan Agreement; in the event that the loan is extended, the
term of the Guarantee shall end on the first anniversary of the expiry of
renewed term of the Loan.
On this basis, the Guarantors have executed this Guarantee in favor of the
Agency Bank and the Lending Banks, which shall come into effect upon execution
of the Letter of Guarantee by the Guarantors and the stamp of their official
seals.
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GUARANTOR SIGNATURE PAGE Re: Provision to the Lending Banks
of irrevocable and unconditional
guarantee with joint liabilities
regarding the Syndicated Loan
Agreement on RMB 5,000,000,000
Loan executed on the date of
October 7, 2000 between China
Mobile (Shenzhen) Limited and Bank
of China, Construction Bank of
China and other Lending Banks
listed in Schedule One of the
Syndicated Loan Agreement.
GUARANTOR: GUANGDONG MOBILE COMMUNICATION COMPANY LIMITED
(OFFICIAL SEAL)
AUTHORIZED REPRESENTATIVE: /S/ LI GANG
---------------
NAME: LI GANG
TITLE: CHAIRMAN & GENERAL MANAGER
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GUARANTEE
To: Bank of China, Construction Bank of China and other Lending Banks
indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB
5,000,000,000) (the "Loan Agreement") executed on the date of October 7, 2000
between China Mobile (Shenzhen) Limited and Bank of China, Construction Bank of
China and other Lending Banks listed in Schedule One of the Syndicated Loan
Agreement (the " Lending Banks").
Zhejiang Mobile Communication Company Limited (the "Guarantor") is a
wholly foreign-owned limited liability company established and existing under
the laws of the People's Republic of China ("China"), with its registered
address of its headquarter at No. 406 Tiyuchang Rd., Hangzhou, Zhejiang. In
accordance with Security Law of the People's Republic of China (the "Security
Law") and other relevant laws and regulations, the Guarantor hereby provides the
Lending Banks with a Guarantee in favor of the Lending Banks and undertakes to
perform its obligations in accordance with stipulations under this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned
limited liability company established and existing under the laws of China, will
execute the Loan Agreement on the same date of the execution of the Letter of
Guarantee. The Loan Agreement Provides that the total amount of the principal of
the loan (the "Loan") granted to the Borrower by the Lending Banks shall not
exceed Renminbi five billion (RMB 5,000,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation
to disburse the Loan under the Loan Agreement is, including but not limited to,
the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in
favor of the Lending Banks issued by the Guarantor, guaranteeing that the
Borrower will pay all the payable sums from time to time to the Lending Banks
through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other
Guarantors, including Guangdong Mobile Communication Company Limited, Jiangsu
Communication Company Limited, Fujian Mobile Communication Company Limited,
Henan Mobile Communication Company Limited and Hainan Mobile Communication
Company Limited (the "Guarantors") shall assume joint and several liabilities
for all debts, responsibilities and obligations stipulated under the Loan
Agreement, and that the Guarantor and the Borrower under the Syndicated Loan
Agreement shall assume joint and several liabilities for all debts,
responsibilities and obligations stipulated under the agreement.
Unless otherwise stipulated, terms used this Letter of Guarantee shall
have the same meaning as defined in the Loan Agreement.
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The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities
(similarly hereinafter), the Guarantor and other Guarantors indicated
hereby absolutely and unconditionally guarantee to the Agency Bank and the
Lending Banks that the Borrower shall make payments in full, promptly and
on a timely basis when any part of and/or all the principal, interest,
Default Interest, compensation, fees to satisfy creditor's claim and other
amounts fall due whether pursuant to the provisions, as a result of
accelerated repayment or otherwise in accordance with the stipulations
under the Loan Agreement, and any and/or all of any other relevant
documents and agreements; the Guarantor understands and acknowledges that
in accordance with the Security Law, (1) the Lending Banks may request the
Borrower to perform its liabilities or request the Guarantor to assume its
guarantee liabilities within the limit of the Guarantee in the event that
Borrower under the Guarantee with joint liabilities has not performed its
liabilities before the deadline for performance of the liabilities; i.e.,
upon the Borrower's failure to pay the due and payable sum under the Loan
Agreement and the occurrence of events and circumstances of default, the
Agency Bank may first request payment from the Guarantors who assume joint
liabilities for debts together with the Borrower and need not first
request payment from the Borrower; (2) in the event that two or more than
two Guarantors assume joint guarantee liabilities, the Lending Banks may
request any one of them to assume the entire guarantee liabilities. All
Guarantors shall assume the obligation to guarantee the satisfaction of
the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire
guaranteed obligation on the part of the Borrower, or upon occurrence of
Event of Default or Anticipatory Event of Default, the Guarantors, as
surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the
Borrower (whether as a result of acceleration or otherwise) to the Agency
Bank in favor of the Lending Banks in accordance with instructions of the
Agency Bank, stipulations under the Loan Agreement and in the manner
required thereby. The Guarantors shall not advance any claim, set-off,
counterclaim or defense to the Agency Bank or any Lending Bank regarding
the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default
hereof, if no corrections have been made within the correction period of
twenty eight (28) working days stipulated under Article 14.4 of the Loan
Agreement, the Lending Banks shall be vested the power to deliver Notice
of Claims accompanied with certificates regarding the Borrower's
non-payment of any of the due and payable amount to the Guarantors, who,
upon receipt of the above Notice of Claims, shall perform its guarantee
obligation in accordance with the amount indicated in the Notice of
Claims. Notwithstanding the foregoing, should the loan principal and/or
interest under the Loan Agreement not be repaid and/or paid, the Lending
Banks shall be vested the power to deliver Notice of Claims accompanied
with certificates regarding the Borrower's non-payment of such principal
and/or interest to the Guarantors, who, upon receipt of the above Notice,
shall perform its guarantee obligation in accordance with the amount
indicated in the Notice of
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Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and
shall not be limited or affected by any circumstances, including (but not
limited to) (1) the Borrower's failure to perform or comply with the Loan
Agreement or any stipulations under any such documents or agreements; (2)
transfer by the Borrower for the benefit of the Creditor (not limited to
the Creditor's interest under this Guarantee), request to nominate a
Recipient, Trustee or Liquidator for the Borrower or any of its assets,
upon declaration of liquidation or filing of the request of liquidation on
the part of the Borrower, or any other measures taken for the above
purposes; (3) changes in the Borrower's name, scope of business,
registered capital or organization documents; or (4) any other
circumstances that may constitute a relief of obligations that shall be
assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the
Guarantee, the Loan Agreement or of the payment under any other relevant
guarantees, documents or agreements, however, such negligence or restraint
shall not affect or mitigate the Guarantors' obligations under the
Guarantee herein. Guarantors shall not request the Agency Bank to make
enforcement of the Loan Agreement or any other guarantees as a
prerequisite of the enforcement of the Guarantee herein. The Failure to
enforce the Loan Agreement or any other guarantees shall not affect or
mitigate the Guarantee herein or defend against the Guarantee herein for
such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned
subsidiaries directly or indirectly owned by China Mobile (Hong Kong)
Limited in China within the term of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein
may at any moment be renewed, extended, amended, compromised, exempted or
abandoned by the Agency Bank or Lending Banks upon request of the
Borrower, and such conducts shall not impair or affect the Guarantors'
liabilities under the Guarantee herein; and the guarantee liabilities of
the Guarantors under the Guarantee herein shall also apply to the above
renewal, extension, amendment or compromise by the Agency Bank and Lending
Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the
guaranteed liabilities. However, before the Agency Bank is vested the
power to receive any debts under the guarantee liabilities, it shall have
no obligation to exhaust its right of recourse against the Borrower, nor
shall it have any obligation to exhaust its right of recourse the Agency
Bank or certain Lending Banks may have against any Guarantor or any
guarantee. This Guarantee shall be irrevocable and with full force before
the full performance of the guaranteed obligations and the full payment of
any indebted amount under the guarantee. The Guarantors shall waive the
defense arising from any time limit that might affect the obligations
hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest
and/or other amounts under the Loan Agreement, the Guarantor shall not
have the right of subrogation obtained as a result of its performance of
any of the guarantee
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liabilities hereunder. Notwithstanding the foregoing, in the event that
the Guarantor receives any sums as a result of its entitlement to such
right of subrogation while one of the guaranteed obligations has not been
performed, the Guarantor shall agree to pay all such sums to the Agency
Bank to offset the amount over due under stipulations of the Loan
Agreement.
10. The Guarantors agree to pay all fees and charges related to the
enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in
the form of Renminbi and paid by the Guarantors in accordance with the
Guarantee in Renminbi. In any circumstances, Renminbi shall be the
currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and
(1) delivered by special messenger; (2) sent by reputable courier service,
or (3) transmitted by telex or facsimile. The address of the Guarantor:
Name of the Company: Zhejiang Mobile Communication Company Limited.,
Address: No. 406 Tiyuchang Rd., Hangzhou, Zhejiang, Postal Code: 310006,
Contact: Jin Han, Telephone Number: 0571-5166048, Fax: 0571-5107903,
E-mail: jinhan@zmcc.com.cn. The date of Notice or Request referred to
herein shall be (1) the day of the receipt thereof if by delivery by
special messenger; (2) the next day following the delivery to the courier
service company if delivered by a creditable courier service; or (3) the
fourth day following the delivery to the postal service if delivered by
post-paid registered mail; (4) the delivery date with confirmation of
acceptance if delivered by telex or facsimile. For the purpose hereof, the
Guarantor may change its address by a written notice to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successor
and the transferees and may be enforced by the Agency Bank, the Lending
Banks, its successors and transferees. The Guarantor shall have no right
to assign or to otherwise transfer the obligations hereunder. The Lending
Bank may transfer part or all of its rights and interest hereunder to
another Lending Bank at any time, in which case the Guarantor shall be
promptly informed of such a transfer upon completion of the transfer; in
the event that the Lending Bank needs to transfer its rights and interest
hereunder to a bank or financial institution other than the Lending Banks,
the Lending Bank shall obtain the consent of the Guarantors first (which
consent shall not be unreasonably withheld). The Guarantors' Obligations
hereunder shall not be Limited or affected in anyway by the above
assignment or transfer. Any of the above assignment and transfer shall
come into effect and be binding on the Guarantors upon the date of such
assignment or transfer.
14. The Guarantors hereby represent and warrant that:
a) the Guarantors are established and validly existing under the Laws
of China, with its registered address as above;
b) the Guarantors have full legal rights, powers and authority to
conduct their existing operations, possess their assets, assume this
Guarantee and other
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obligations stipulated hereunder, execute and deliver this Guarantee
and to perform and comply with the terms and conditions hereunder;
c) the Guarantors have taken all appropriate and necessary corporate
and legal actions to authorize the execution and delivery of this
Guarantee and to perform and abide by the stipulations and terms
hereunder;
d) except for the relevant documents already obtained and submitted to
the Agency Bank and the Lending Banks, the execution, delivery,
effectiveness, performance, enforcement, the validity as evidence in
legal proceedings of this Guarantee and the Guarantors' obligations
hereunder do not require further consent from any other governmental
departments or agency or any other shareholders or creditors, or
notification thereto, or registration or filing therewith, or other
actions to be taken;
e) This Guarantee constitutes the legal and valid obligations binding
on the Guarantors and can be enforced in accordance with its
stipulations. The execution, delivery, performance of terms and
conditions hereunder, the payment of all the due and payable amount
in the currency stipulated hereunder on the date indicated herein do
not (1) infringe or violate any stipulations of any applicable laws
of China and other government regulations (with legal validity or
not); (2) violate any government guidelines and policies (with no
legal validity) applicable to the Guarantors; (3) conflict with the
business license of the Guarantors; (4) conflict with any
agreements, debentures, mortgages or other documents other than this
Guarantee to which the Guarantor is a Party or the Guarantor or its
assets is bound, and will not bring about consequences of violation
of any of the stipulations thereof nor create any mortgage, lien,
pledge, security interests or preferential arrangement; (5)
constitute Event of Default under any agreement nor constitute Event
of Default due to delivery of Notice or elapse of time or both;
f) under any agreement to which the Guarantor is a Party or the
Guarantor or its assets is bound, no Event of Default has occurred
on the part of the Guarantor which affects the Guarantor's ability
to pay the full amount payable hereunder;
g) this Guarantee constitutes the Guarantors' direct, unconditional and
comprehensive obligations. With respect to the priority order of the
Guarantor's payment of other loans, liabilities, guarantee or
obligations and all other aspect the Guarantors' obligations
hereunder at least have and will have the priority equal to the
guaranteed loans, liabilities or obligations and other guarantee;
h) there are no material or possible debts that have potential adverse
impact on the Guarantor's performance of its guarantee obligations
hereunder which has not been disclosed to the Agency Bank or the
Lending Banks by the Guarantor;
i) there are no pending or threatening lawsuit, arbitration or other
proceedings
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against the Guarantors with the tribunal of arbitration, the court,
governmental agencies or administrative agencies which may affect
the financial status or operation of the Guarantors, or impair the
Guarantors' ability to pay all or part of the payable amount in
accordance with this Guarantee, or affect the validity or
enforcement of this Guarantee in anyway;
j) the Guarantors undertake their business and operations in accordance
with all applicable laws, rules and regulations of China.
15. The Guarantors further warrant that:
a) the Guarantors shall maintain their accounting system in accordance
with the accounting principles stipulated under the laws of China;
b) the Guarantors shall deliver an audited annual financial statement
to the Agency Bank within 120 days after every fiscal year and
deliver an unaudited semi-annual financial statement to the Agency
Bank within 90 days after the first half of every fiscal year;
c) after the execution of this Guarantee, the Guarantors respectively
or along with the Borrower shall appoint one of the top six
international accounting firms to prepare semi-annual consolidated
financial statements of the Guarantors in accordance with the
accounting standards of China and deliver them to the Lending Banks
through the Agency Bank. In the event that the parent company of the
Guarantors, namely China Mobile (Hong Kong) Limited shall arrange
and prepare audited semi-annual financial statements in accordance
with laws of Hong Kong rules of Hong Kong Stock Exchange, the
semi-annual consolidated financial statements of the Guarantors
hereunder shall be audited financial statements; otherwise, the
international accounting firm ranked among the top six international
accounting firms shall prepare unaudited semi-annual consolidated
financial statements of the Guarantors and provide the Agency Bank
with a letter, indicating that the unaudited semi-annual
consolidated financial statements of the Guarantors prepared by the
firm (1) is in accordance with the accounting standards of China;
(2) the preparation method is reasonable and correct. Such
semi-annual consolidated financial statements shall at the same time
be attached with a letter produced by the Guarantors indicating the
truthfulness of the data presented in the financial statements.
Expense incurred in the preparation of the financial statements
shall be borne by the Guarantors and/or the Borrower;
d) the Guarantors respectively or along with the Borrower shall appoint
one of the top six international accounting firms to prepare
semi-annual consolidated financial statements for the six Guarantors
hereunder and deliver them, through the Agency Bank, to the Lending
Banks. The Guarantors and/or Borrower shall bear the relevant fees
and charges;
e) the Guarantors shall notify the Agency Bank immediately with regard
to the following issues:
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i) lawsuit, arbitration or claims in any other forms regarding
any creditor's claim with the total amount exceeding Renminbi
three hundred million (RMB 300,000,000) or with the equivalent
amount in other currencies;
ii) merger with other companies or business institutions;
iii) sales, transfer or other means of disposal of assets or
business of more than Renminbi one billion (RMB
1,000,000,000);
f) the Guarantors shall abide by applicable laws, rules and regulation,
authorities or agreements, perform relevant obligations and pay any
due and payable tax;
g) in the event that the aggregate balance of debt or contingent
liabilities of the Guarantors is less than one hundred and twenty
percent (120%) of the total shareholders' equity, the Guarantors
shall notify the Agency Bank on a timely basis of their material or
possible debts incurred, assumed or newly-established with the
amount of a single item exceeding Renminbi one billion (RMB
1,000,000,000) or debt with equivalent value and immediately provide
the Agency Bank with text of the agreement regarding the material
debt or contingent liabilities; in the event that the aggregated
balance of the debt or contingent liabilities of the Guarantors
exceeds one hundred and twenty percent (120%) of the total
shareholders' equity, the Guarantors shall not incur, assume or
establish any additional debt or contingent liabilities without the
Lending Banks' prior consent. To this end, the Guarantors shall
notify the Agency Bank in writing of the event that the Guarantors
may incur, assume or establish additional debts or contingent
liabilities with attachment of a draft of the agreement regarding
the relevant debts and contingent liabilities. The Agency Bank shall
notify the Guarantors within ten (10) Bank Business Days after
receipt of the above written Notice if the Agency Bank agrees upon
the above debts or contingent liabilities. The Agency Bank's failure
to notify the Guarantors within the above time limit shall be deemed
as consent;
h) the Guarantors will not take any action or procedure for the purpose
of dissolution, liquidation or termination of the business without
the Lending Banks' prior consent;
i) No other debt or contingent liabilities with higher rank of priority
over the debts and contingent liabilities hereunder in respect of
the order of payment will be created.
16. The validity, presumption and interpretation of this Guarantee and all the
rights, obligations and liabilities arising out of this Guarantee shall be
governed by and interpreted according to the laws of China. Any legal
actions or proceedings taken against the Guarantors or any of their assets
in connection with this Guarantee shall be submitted to the competent
tribunal of economic adjudication of the people's court in Beijing.
17. In the event that any payment under this Guarantee is required to be made
on a
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Non-Bank Business Day, such payment shall be postponed to the next Bank
Business Day or any other date provided under the Loan Agreement.
18. The Term of the Guarantee herein shall begin from the date of the
execution of the Syndicated Loan Agreement and end on the first
anniversary of the expiry of the Term of the Loan stipulated under the
Syndicated Loan Agreement; in the event that the loan is extended, the
term of the Guarantee shall end on the first anniversary of the expiry of
renewed term of the Loan.
On this basis, the Guarantors have executed this Guarantee in favor of the
Agency Bank and the Lending Banks, which shall come into effect upon execution
of the Letter of Guarantee by the Guarantors and the stamp of their official
seals.
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GUARANTOR SIGNATURE PAGE Re: Provision to the Lending Banks
of irrevocable and unconditional
guarantee with joint liabilities
regarding the Syndicated Loan
Agreement on RMB 5,000,000,000
Loan executed on the date of
October 7, 2000 between China
Mobile (Shenzhen) Limited and Bank
of China, Construction Bank of
China and other Lending Banks
listed in Schedule One of the
Syndicated Loan Agreement.
GUARANTOR: ZHEJIANG MOBILE COMMUNICATION COMPANY LIMITED
(OFFICIAL SEAL)
AUTHORIZED REPRESENTATIVE: /S/ XU LONG
---------------
NAME:
TITLE:
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GUARANTEE
To: Bank of China, Construction Bank of China and other Lending Banks
indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB
5,000,000,000) (the "Loan Agreement") executed on the date of October 7, 2000
between China Mobile (Shenzhen) Limited and Bank of China, Construction Bank of
China and other Lending Banks listed in Schedule One of the Syndicated Loan
Agreement (the "Lending Banks").
Jiangsu Mobile Communication Company Limited (the "Guarantor") is a wholly
foreign-owned limited liability company established and existing under the laws
of the People's Republic of China ("China"), with its registered address of its
headquarter at No. 51, Huju Rd., Nanjing, Jiangsu. In accordance with Security
Law of the People's Republic of China (the "Security Law") and other relevant
laws and regulations, the Guarantor hereby provides the Lending Banks with a
Guarantee in favor of the Lending Banks and undertakes to perform its
obligations in accordance with stipulations under this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned
limited liability company established and existing under the laws of China, will
execute the Loan Agreement on the same date of the execution of the Letter of
Guarantee. The Loan Agreement Provides that the total amount of the principal of
the loan (the "Loan") granted to the Borrower by the Lending Banks shall not
exceed Renminbi five billion (RMB 5,000,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation
to disburse the Loan under the Loan Agreement is, including but not limited to,
the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in
favor of the Lending Banks issued by the Guarantor, guaranteeing that the
Borrower will pay all the payable sums from time to time to the Lending Banks
through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other
Guarantors, including Guangdong Mobile Communication Company Limited, Zhejiang
Communication Company Limited, Fujian Mobile Communication Company Limited,
Henan Mobile Communication Company Limited and Hainan Mobile Communication
Company Limited (the "Guarantors") shall assume joint and several liabilities
for all debts, responsibilities and obligations stipulated under the Loan
Agreement, and that the Guarantor and the Borrower under the Syndicated Loan
Agreement shall assume joint and several liabilities for all debts,
responsibilities and obligations stipulated under the agreement.
Unless otherwise stipulated, terms used this Letter of Guarantee shall
have the same meaning as defined in the Loan Agreement.
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The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities
(similarly hereinafter), the Guarantor and other Guarantors indicated
hereby absolutely and unconditionally guarantee to the Agency Bank and the
Lending Banks that the Borrower shall make payments in full, promptly and
on a timely basis when any part of and/or all the principal, interest,
Default Interest, compensation, fees to satisfy creditor's claim and other
amounts fall due whether pursuant to the provisions, as a result of
accelerated repayment or otherwise in accordance with the stipulations
under the Loan Agreement, and any and/or all of any other relevant
documents and agreements; the Guarantor understands and acknowledges that
in accordance with the Security Law, (1) the Lending Banks may request the
Borrower to perform its liabilities or request the Guarantor to assume its
guarantee liabilities within the limit of the Guarantee in the event that
Borrower under the Guarantee with joint liabilities has not performed its
liabilities before the deadline for performance of the liabilities; i.e.,
upon the Borrower's failure to pay the due and payable sum under the Loan
Agreement and the occurrence of events and circumstances of default, the
Agency Bank may first request payment from the Guarantors who assume joint
liabilities for debts together with the Borrower and need not first
request payment from the Borrower; (2) in the event that two or more than
two Guarantors assume joint guarantee liabilities, the Lending Banks may
request any one of them to assume the entire guarantee liabilities. All
Guarantors shall assume the obligation to guarantee the satisfaction of
the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire
guaranteed obligation on the part of the Borrower, or upon occurrence of
Event of Default or Anticipatory Event of Default, the Guarantors, as
surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the
Borrower (whether as a result of acceleration or otherwise) to the Agency
Bank in favor of the Lending Banks in accordance with instructions of the
Agency Bank, stipulations under the Loan Agreement and in the manner
required thereby. The Guarantors shall not advance any claim, set-off,
counterclaim or defense to the Agency Bank or any Lending Bank regarding
the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default
hereof, if no corrections have been made within the correction period of
twenty eight (28) working days stipulated under Article 14.4 of the Loan
Agreement, the Lending Banks shall be vested the power to deliver Notice
of Claims accompanied with certificates regarding the Borrower's
non-payment of any of the due and payable amount to the Guarantors, who,
upon receipt of the above Notice of Claims, shall perform its guarantee
obligation in accordance with the amount indicated in the Notice of
Claims. Notwithstanding the foregoing, should the loan principal and/or
interest under the Loan Agreement not be repaid and/or paid, the Lending
Banks shall be vested the power to deliver Notice of Claims accompanied
with certificates regarding the Borrower's non-payment of such principal
and/or interest to the Guarantors, who, upon receipt of the above Notice,
shall perform its guarantee obligation in accordance with the amount
indicated in the Notice of
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Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and
shall not be limited or affected by any circumstances, including (but not
limited to) (1) the Borrower's failure to perform or comply with the Loan
Agreement or any stipulations under any such documents or agreements; (2)
transfer by the Borrower for the benefit of the Creditor (not limited to
the Creditor's interest under this Guarantee), request to nominate a
Recipient, Trustee or Liquidator for the Borrower or any of its assets,
upon declaration of liquidation or filing of the request of liquidation on
the part of the Borrower, or any other measures taken for the above
purposes; (3) changes in the Borrower's name, scope of business,
registered capital or organization documents; or (4) any other
circumstances that may constitute a relief of obligations that shall be
assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the
Guarantee, the Loan Agreement or of the payment under any other relevant
guarantees, documents or agreements, however, such negligence or restraint
shall not affect or mitigate the Guarantors' obligations under the
Guarantee herein. Guarantors shall not request the Agency Bank to make
enforcement of the Loan Agreement or any other guarantees as a
prerequisite of the enforcement of the Guarantee herein. The Failure to
enforce the Loan Agreement or any other guarantees shall not affect or
mitigate the Guarantee herein or defend against the Guarantee herein for
such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned
subsidiaries directly or indirectly owned by China Mobile (Hong Kong)
Limited in China within the term of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein
may at any moment be renewed, extended, amended, compromised, exempted or
abandoned by the Agency Bank or Lending Banks upon request of the
Borrower, and such conducts shall not impair or affect the Guarantors'
liabilities under the Guarantee herein; and the guarantee liabilities of
the Guarantors under the Guarantee herein shall also apply to the above
renewal, extension, amendment or compromise by the Agency Bank and Lending
Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the
guaranteed liabilities. However, before the Agency Bank is vested the
power to receive any debts under the guarantee liabilities, it shall have
no obligation to exhaust its right of recourse against the Borrower, nor
shall it have any obligation to exhaust its right of recourse the Agency
Bank or certain Lending Banks may have against any Guarantor or any
guarantee. This Guarantee shall be irrevocable and with full force before
the full performance of the guaranteed obligations and the full payment of
any indebted amount under the guarantee. The Guarantors shall waive the
defense arising from any time limit that might affect the obligations
hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest
and/or other amounts under the Loan Agreement, the Guarantor shall not
have the right of subrogation obtained as a result of its performance of
any of the guarantee
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liabilities hereunder. Notwithstanding the foregoing, in the event that
the Guarantor receives any sums as a result of its entitlement to such
right of subrogation while one of the guaranteed obligations has not been
performed, the Guarantor shall agree to pay all such sums to the Agency
Bank to offset the amount over due under stipulations of the Loan
Agreement.
10. The Guarantors agree to pay all fees and charges related to the
enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in
the form of Renminbi and paid by the Guarantors in accordance with the
Guarantee in Renminbi. In any circumstances, Renminbi shall be the
currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and
(1) delivered by special messenger; (2) sent by reputable courier service,
or (3) transmitted by telex or facsimile. The address of the Guarantor:
Name of the Company: Jiangsu Mobile Communication Company Limited.,
Address: No. 51, Huju Rd., Nanjing, Jiangsu, Postal Code: 210029, Contact:
Ji Xiaoming, Telephone Number: 025-6668163, Fax: 025-6668162, E-mail:
jmcccwb@public1.ptt.js.cn. The date of Notice or Request referred to
herein shall be (1) the day of the receipt thereof if by delivery by
special messenger; (2) the next day following the delivery to the courier
service company if delivered by a creditable courier service; or (3) the
fourth day following the delivery to the postal service if delivered by
post-paid registered mail; (4) the delivery date with confirmation of
acceptance if delivered by telex or facsimile. For the purpose hereof, the
Guarantor may change its address by a written notice to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successor
and the transferees and may be enforced by the Agency Bank, the Lending
Banks, its successors and transferees. The Guarantor shall have no right
to assign or to otherwise transfer the obligations hereunder. The Lending
Bank may transfer part or all of its rights and interest hereunder to
another Lending Bank at any time, in which case the Guarantor shall be
promptly informed of such a transfer upon completion of the transfer; in
the event that the Lending Bank needs to transfer its rights and interest
hereunder to a bank or financial institution other than the Lending Banks,
the Lending Bank shall obtain the consent of the Guarantors first (which
consent shall not be unreasonably withheld). The Guarantors' Obligations
hereunder shall not be Limited or affected in anyway by the above
assignment or transfer. Any of the above assignment and transfer shall
come into effect and be binding on the Guarantors upon the date of such
assignment or transfer.
14. The Guarantors hereby represent and warrant that:
a) the Guarantors are established and validly existing under the Laws
of China, with its registered address as above;
b) the Guarantors have full legal rights, powers and authority to
conduct their existing operations, possess their assets, assume this
Guarantee and other
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obligations stipulated hereunder, execute and deliver this Guarantee
and to perform and comply with the terms and conditions hereunder;
c) the Guarantors have taken all appropriate and necessary corporate
and legal actions to authorize the execution and delivery of this
Guarantee and to perform and abide by the stipulations and terms
hereunder;
d) except for the relevant documents already obtained and submitted to
the Agency Bank and the Lending Banks, the execution, delivery,
effectiveness, performance, enforcement, the validity as evidence in
legal proceedings of this Guarantee and the Guarantors' obligations
hereunder do not require further consent from any other governmental
departments or agency or any other shareholders or creditors, or
notification thereto, or registration or filing therewith, or other
actions to be taken;
e) This Guarantee constitutes the legal and valid obligations binding
on the Guarantors and can be enforced in accordance with its
stipulations. The execution, delivery, performance of terms and
conditions hereunder, the payment of all the due and payable amount
in the currency stipulated hereunder on the date indicated herein do
not (1) infringe or violate any stipulations of any applicable laws
of China and other government regulations (with legal validity or
not); (2) violate any government guidelines and policies (with no
legal validity) applicable to the Guarantors; (3) conflict with the
business license of the Guarantors; (4) conflict with any
agreements, debentures, mortgages or other documents other than this
Guarantee to which the Guarantor is a Party or the Guarantor or its
assets is bound, and will not bring about consequences of violation
of any of the stipulations thereof nor create any mortgage, lien,
pledge, security interests or preferential arrangement; (5)
constitute Event of Default under any agreement nor constitute Event
of Default due to delivery of Notice or elapse of time or both;
f) under any agreement to which the Guarantor is a Party or the
Guarantor or its assets is bound, no Event of Default has occurred
on the part of the Guarantor which affects the Guarantor's ability
to pay the full amount payable hereunder;
g) this Guarantee constitutes the Guarantors' direct, unconditional and
comprehensive obligations. With respect to the priority order of the
Guarantor's payment of other loans, liabilities, guarantee or
obligations and all other aspect the Guarantors' obligations
hereunder at least have and will have the priority equal to the
guaranteed loans, liabilities or obligations and other guarantee;
h) there are no material or possible debts that have potential adverse
impact on the Guarantor's performance of its guarantee obligations
hereunder which has not been disclosed to the Agency Bank or the
Lending Banks by the Guarantor;
i) there are no pending or threatening lawsuit, arbitration or other
proceedings
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against the Guarantors with the tribunal of arbitration, the court,
governmental agencies or administrative agencies which may affect
the financial status or operation of the Guarantors, or impair the
Guarantors' ability to pay all or part of the payable amount in
accordance with this Guarantee, or affect the validity or
enforcement of this Guarantee in anyway;
j) the Guarantors undertake their business and operations in accordance
with all applicable laws, rules and regulations of China.
15. The Guarantors further warrant that:
a) the Guarantors shall maintain their accounting system in accordance
with the accounting principles stipulated under the laws of China;
b) the Guarantors shall deliver an audited annual financial statement
to the Agency Bank within 120 days after every fiscal year and
deliver an unaudited semi-annual financial statement to the Agency
Bank within 90 days after the first half of every fiscal year;
c) after the execution of this Guarantee, the Guarantors respectively
or along with the Borrower shall appoint one of the top six
international accounting firms to prepare semi-annual consolidated
financial statements of the Guarantors in accordance with the
accounting standards of China and deliver them to the Lending Banks
through the Agency Bank. In the event that the parent company of the
Guarantors, namely China Mobile (Hong Kong) Limited shall arrange
and prepare audited semi-annual financial statements in accordance
with laws of Hong Kong rules of Hong Kong Stock Exchange, the
semi-annual consolidated financial statements of the Guarantors
hereunder shall be audited financial statements; otherwise, the
international accounting firm ranked among the top six international
accounting firms shall prepare unaudited semi-annual consolidated
financial statements of the Guarantors and provide the Agency Bank
with a letter, indicating that the unaudited semi-annual
consolidated financial statements of the Guarantors prepared by the
firm (1) is in accordance with the accounting standards of China;
(2) the preparation method is reasonable and correct. Such
semi-annual consolidated financial statements shall at the same time
be attached with a letter produced by the Guarantors indicating the
truthfulness of the data presented in the financial statements.
Expense incurred in the preparation of the financial statements
shall be borne by the Guarantors and/or the Borrower;
d) the Guarantors respectively or along with the Borrower shall appoint
one of the top six international accounting firms to prepare
semi-annual consolidated financial statements for the six Guarantors
hereunder and deliver them, through the Agency Bank, to the Lending
Banks. The Guarantors and/or Borrower shall bear the relevant fees
and charges;
e) the Guarantors shall notify the Agency Bank immediately with regard
to the following issues:
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i) lawsuit, arbitration or claims in any other forms regarding
any creditor's claim with the total amount exceeding Renminbi
three hundred million (RMB 300,000,000) or with the equivalent
amount in other currencies;
ii) merger with other companies or business institutions;
iii) sales, transfer or other means of disposal of assets or
business of more than Renminbi one billion (RMB
1,000,000,000);
f) the Guarantors shall abide by applicable laws, rules and regulation,
authorities or agreements, perform relevant obligations and pay any
due and payable tax;
g) in the event that the aggregate balance of debt or contingent
liabilities of the Guarantors is less than one hundred and twenty
percent (120%) of the total shareholders' equity, the Guarantors
shall notify the Agency Bank on a timely basis of their material or
possible debts incurred, assumed or newly-established with the
amount of a single item exceeding Renminbi one billion (RMB
1,000,000,000) or debt with equivalent value and immediately provide
the Agency Bank with text of the agreement regarding the material
debt or contingent liabilities; in the event that the aggregated
balance of the debt or contingent liabilities of the Guarantors
exceeds one hundred and twenty percent (120%) of the total
shareholders' equity, the Guarantors shall not incur, assume or
establish any additional debt or contingent liabilities without the
Lending Banks' prior consent. To this end, the Guarantors shall
notify the Agency Bank in writing of the event that the Guarantors
may incur, assume or establish additional debts or contingent
liabilities with attachment of a draft of the agreement regarding
the relevant debts and contingent liabilities. The Agency Bank shall
notify the Guarantors within ten (10) Bank Business Days after
receipt of the above written Notice if the Agency Bank agrees upon
the above debts or contingent liabilities. The Agency Bank's failure
to notify the Guarantors within the above time limit shall be deemed
as consent;
h) the Guarantors will not take any action or procedure for the purpose
of dissolution, liquidation or termination of the business without
the Lending Banks' prior consent;
i) No other debt or contingent liabilities with higher rank of priority
over the debts and contingent liabilities hereunder in respect of
the order of payment will be created.
16. The validity, presumption and interpretation of this Guarantee and all the
rights, obligations and liabilities arising out of this Guarantee shall be
governed by and interpreted according to the laws of China. Any legal
actions or proceedings taken against the Guarantors or any of their assets
in connection with this Guarantee shall be submitted to the competent
tribunal of economic adjudication of the people's court in Beijing.
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17. In the event that any payment under this Guarantee is required to be made on
a Non-Bank Business Day, such payment shall be postponed to the next Bank
Business Day or any other date provided under the Loan Agreement.
18. The Term of the Guarantee herein shall begin from the date of the execution
of the Syndicated Loan Agreement and end on the first anniversary of the
expiry of the Term of the Loan stipulated under the Syndicated Loan
Agreement; in the event that the loan is extended, the term of the Guarantee
shall end on the first anniversary of the expiry of renewed term of the
Loan.
On this basis, the Guarantors have executed this Guarantee in favor of the
Agency Bank and the Lending Banks, which shall come into effect upon execution
of the Letter of Guarantee by the Guarantors and the stamp of their official
seals.
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GUARANTOR SIGNATURE PAGE Re: Provision to the Lending Banks
of irrevocable and unconditional
guarantee with joint liabilities
regarding the Syndicate Loan
Agreement on RMB 5,000,000,000
Loan executed on the date of
October 7, 2000 between China
Mobile (Shenzhen) Limited and Bank
of China, Construction Bank of
China and other Lending Banks
listed in Schedule One of the
Syndicated Loan Agreement.
GUARANTOR: JIANGSU MOBILE COMMUNICATION COMPANY LIMITED
(OFFICIAL SEAL)
AUTHORIZED REPRESENTATIVE: /S/ HE NING
---------------
NAME: HE NING
TITLE: CHAIRMAN & GENERAL MANAGER
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GUARANTEE
To: Bank of China, Construction Bank of China and other Lending Banks
indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB
5,000,000,000) (the "Loan Agreement") executed on the date of October 7, 2000
between China Mobile (Shenzhen) Limited and Bank of China, Construction Bank of
China and other Lending Banks listed in Schedule One of the Syndicated Loan
Agreement (the " Lending Banks").
Fujian Mobile Communication Company Limited (the "Guarantor") is a wholly
foreign-owned limited liability company established and existing under the laws
of the People's Republic of China ("China"), with its registered address of its
headquarter at No. 59 Wushan Rd., Gulou District, Fuzhou, Fujian. In accordance
with Security Law of the People's Republic of China (the "Security Law") and
other relevant laws and regulations, the Guarantor hereby provides the Lending
Banks with a Guarantee in favor of the Lending Banks and undertakes to perform
its obligations in accordance with stipulations under this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned
limited liability company established and existing under the laws of China, will
execute the Loan Agreement on the same date of the execution of the Letter of
Guarantee. The Loan Agreement Provides that the total amount of the principal of
the loan (the "Loan") granted to the Borrower by the Lending Banks shall not
exceed Renminbi five billion (RMB 5,000,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation
to disburse the Loan under the Loan Agreement is, including but not limited to,
the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in
favor of the Lending Banks issued by the Guarantor, guaranteeing that the
Borrower will pay all the payable sums from time to time to the Lending Banks
through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other
Guarantors, including Guangdong Mobile Communication Company Limited, Zhejiang
Communication Company Limited, Jiangsu Mobile Communication Company Limited,
Henan Mobile Communication Company Limited and Hainan Mobile Communication
Company Limited (the "Guarantors") shall assume joint and several liabilities
for all debts, responsibilities and obligations stipulated under the Loan
Agreement, and that the Guarantor and the Borrower under the Syndicated Loan
Agreement shall assume joint and several liabilities for all debts,
responsibilities and obligations stipulated under the agreement.
Unless otherwise stipulated, terms used this Letter of Guarantee shall
have the same meaning as defined in the Loan Agreement.
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The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities
(similarly hereinafter), the Guarantor and other Guarantors indicated
hereby absolutely and unconditionally guarantee to the Agency Bank and the
Lending Banks that the Borrower shall make payments in full, promptly and
on a timely basis when any part of and/or all the principal, interest,
Default Interest, compensation, fees to satisfy creditor's claim and other
amounts fall due whether pursuant to the provisions, as a result of
accelerated repayment or otherwise in accordance with the stipulations
under the Loan Agreement, and any and/or all of any other relevant
documents and agreements; the Guarantor understands and acknowledges that
in accordance with the Security Law, (1) the Lending Banks may request the
Borrower to perform its liabilities or request the Guarantor to assume its
guarantee liabilities within the limit of the Guarantee in the event that
Borrower under the Guarantee with joint liabilities has not performed its
liabilities before the deadline for performance of the liabilities; i.e.,
upon the Borrower's failure to pay the due and payable sum under the Loan
Agreement and the occurrence of events and circumstances of default, the
Agency Bank may first request payment from the Guarantors who assume joint
liabilities for debts together with the Borrower and need not first
request payment from the Borrower; (2) in the event that two or more than
two Guarantors assume joint guarantee liabilities, the Lending Banks may
request any one of them to assume the entire guarantee liabilities. All
Guarantors shall assume the obligation to guarantee the satisfaction of
the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire
guaranteed obligation on the part of the Borrower, or upon occurrence of
Event of Default or Anticipatory Event of Default, the Guarantors, as
surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the
Borrower (whether as a result of acceleration or otherwise) to the Agency
Bank in favor of the Lending Banks in accordance with instructions of the
Agency Bank, stipulations under the Loan Agreement and in the manner
required thereby. The Guarantors shall not advance any claim, set-off,
counterclaim or defense to the Agency Bank or any Lending Bank regarding
the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default
hereof, if no corrections have been made within the correction period of
twenty eight (28) working days stipulated under Article 14.4 of the Loan
Agreement, the Lending Banks shall be vested the power to deliver Notice
of Claims accompanied with certificates regarding the Borrower's
non-payment of any of the due and payable amount to the Guarantors, who,
upon receipt of the above Notice of Claims, shall perform its guarantee
obligation in accordance with the amount indicated in the Notice of
Claims. Notwithstanding the foregoing, should the loan principal and/or
interest under the Loan Agreement not be repaid and/or paid, the Lending
Banks shall be vested the power to deliver Notice of Claims accompanied
with certificates regarding the Borrower's non-payment of such principal
and/or interest to the Guarantors, who, upon receipt of the above Notice,
shall perform its guarantee obligation in accordance with the amount
indicated in the Notice of
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Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and
shall not be limited or affected by any circumstances, including (but not
limited to) (1) the Borrower's failure to perform or comply with the Loan
Agreement or any stipulations under any such documents or agreements; (2)
transfer by the Borrower for the benefit of the Creditor (not limited to
the Creditor's interest under this Guarantee), request to nominate a
Recipient, Trustee or Liquidator for the Borrower or any of its assets,
upon declaration of liquidation or filing of the request of liquidation on
the part of the Borrower, or any other measures taken for the above
purposes; (3) changes in the Borrower's name, scope of business,
registered capital or organization documents; or (4) any other
circumstances that may constitute a relief of obligations that shall be
assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the
Guarantee, the Loan Agreement or of the payment under any other relevant
guarantees, documents or agreements, however, such negligence or restraint
shall not affect or mitigate the Guarantors' obligations under the
Guarantee herein. Guarantors shall not request the Agency Bank to make
enforcement of the Loan Agreement or any other guarantees as a
prerequisite of the enforcement of the Guarantee herein. The Failure to
enforce the Loan Agreement or any other guarantees shall not affect or
mitigate the Guarantee herein or defend against the Guarantee herein for
such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned
subsidiaries directly or indirectly owned by China Mobile (Hong Kong)
Limited in China within the term of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein
may at any moment be renewed, extended, amended, compromised, exempted or
abandoned by the Agency Bank or Lending Banks upon request of the
Borrower, and such conducts shall not impair or affect the Guarantors'
liabilities under the Guarantee herein; and the guarantee liabilities of
the Guarantors under the Guarantee herein shall also apply to the above
renewal, extension, amendment or compromise by the Agency Bank and Lending
Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the
guaranteed liabilities. However, before the Agency Bank is vested the
power to receive any debts under the guarantee liabilities, it shall have
no obligation to exhaust its right of recourse against the Borrower, nor
shall it have any obligation to exhaust its right of recourse the Agency
Bank or certain Lending Banks may have against any Guarantor or any
guarantee. This Guarantee shall be irrevocable and with full force before
the full performance of the guaranteed obligations and the full payment of
any indebted amount under the guarantee. The Guarantors shall waive the
defense arising from any time limit that might affect the obligations
hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest
and/or other amounts under the Loan Agreement, the Guarantor shall not
have the right of subrogation obtained as a result of its performance of
any of the guarantee
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liabilities hereunder. Notwithstanding the foregoing, in the event that
the Guarantor receives any sums as a result of its entitlement to such
right of subrogation while one of the guaranteed obligations has not been
performed, the Guarantor shall agree to pay all such sums to the Agency
Bank to offset the amount over due under stipulations of the Loan
Agreement.
10. The Guarantors agree to pay all fees and charges related to the
enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in
the form of Renminbi and paid by the Guarantors in accordance with the
Guarantee in Renminbi. In any circumstances, Renminbi shall be the
currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and
(1) delivered by special messenger; (2) sent by reputable courier service,
or (3) transmitted by telex or facsimile. The address of the Guarantor:
Name of the Company: Fujian Mobile Communication Company Limited.,
Address: No. 59 Wushan Rd., Gulou District, Fuzhou, Fujian, Postal Code:
350001, Contact: Gao Yanghui, Telephone Number: 0591-3376133, Fax:
0591-3376130, E-mail: luckgyh@21cn.com. The date of Notice or Request
referred to herein shall be (1) the day of the receipt thereof if by
delivery by special messenger; (2) the next day following the delivery to
the courier service company if delivered by a creditable courier service;
or (3) the fourth day following the delivery to the postal service if
delivered by post-paid registered mail; (4) the delivery date with
confirmation of acceptance if delivered by telex or facsimile. For the
purpose hereof, the Guarantor may change its address by a written notice
to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successor
and the transferees and may be enforced by the Agency Bank, the Lending
Banks, its successors and transferees. The Guarantor shall have no right
to assign or to otherwise transfer the obligations hereunder. The Lending
Bank may transfer part or all of its rights and interest hereunder to
another Lending Bank at any time, in which case the Guarantor shall be
promptly informed of such a transfer upon completion of the transfer; in
the event that the Lending Bank needs to transfer its rights and interest
hereunder to a bank or financial institution other than the Lending Banks,
the Lending Bank shall obtain the consent of the Guarantors first (which
consent shall not be unreasonably withheld). The Guarantors' Obligations
hereunder shall not be Limited or affected in anyway by the above
assignment or transfer. Any of the above assignment and transfer shall
come into effect and be binding on the Guarantors upon the date of such
assignment or transfer.
14. The Guarantors hereby represent and warrant that:
a) the Guarantors are established and validly existing under the Laws
of China, with its registered address as above;
b) the Guarantors have full legal rights, powers and authority to
conduct their existing operations, possess their assets, assume this
Guarantee and other obligations stipulated hereunder, execute and
deliver this Guarantee and to
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perform and comply with the terms and conditions hereunder;
c) the Guarantors have taken all appropriate and necessary corporate
and legal actions to authorize the execution and delivery of this
Guarantee and to perform and abide by the stipulations and terms
hereunder;
d) except for the relevant documents already obtained and submitted to
the Agency Bank and the Lending Banks, the execution, delivery,
effectiveness, performance, enforcement, the validity as evidence in
legal proceedings of this Guarantee and the Guarantors' obligations
hereunder do not require further consent from any other governmental
departments or agency or any other shareholders or creditors, or
notification thereto, or registration or filing therewith, or other
actions to be taken;
e) This Guarantee constitutes the legal and valid obligations binding
on the Guarantors and can be enforced in accordance with its
stipulations. The execution, delivery, performance of terms and
conditions hereunder, the payment of all the due and payable amount
in the currency stipulated hereunder on the date indicated herein do
not (1) infringe or violate any stipulations of any applicable laws
of China and other government regulations (with legal validity or
not); (2) violate any government guidelines and policies (with no
legal validity) applicable to the Guarantors; (3) conflict with the
business license of the Guarantors; (4) conflict with any
agreements, debentures, mortgages or other documents other than this
Guarantee to which the Guarantor is a Party or the Guarantor or its
assets is bound, and will not bring about consequences of violation
of any of the stipulations thereof nor create any mortgage, lien,
pledge, security interests or preferential arrangement; (5)
constitute Event of Default under any agreement nor constitute Event
of Default due to delivery of Notice or elapse of time or both;
f) under any agreement to which the Guarantor is a Party or the
Guarantor or its assets is bound, no Event of Default has occurred
on the part of the Guarantor which affects the Guarantor's ability
to pay the full amount payable hereunder;
g) this Guarantee constitutes the Guarantors' direct, unconditional and
comprehensive obligations. With respect to the priority order of the
Guarantor's payment of other loans, liabilities, guarantee or
obligations and all other aspect the Guarantors' obligations
hereunder at least have and will have the priority equal to the
guaranteed loans, liabilities or obligations and other guarantee;
h) there are no material or possible debts that have potential adverse
impact on the Guarantor's performance of its guarantee obligations
hereunder which has not been disclosed to the Agency Bank or the
Lending Banks by the Guarantor;
i) there are no pending or threatening lawsuit, arbitration or other
proceedings against the Guarantors with the tribunal of arbitration,
the court,
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governmental agencies or administrative agencies which may affect
the financial status or operation of the Guarantors, or impair the
Guarantors' ability to pay all or part of the payable amount in
accordance with this Guarantee, or affect the validity or
enforcement of this Guarantee in anyway;
j) the Guarantors undertake their business and operations in accordance
with all applicable laws, rules and regulations of China.
15. The Guarantors further warrant that:
a) the Guarantors shall maintain their accounting system in accordance
with the accounting principles stipulated under the laws of China;
b) the Guarantors shall deliver an audited annual financial statement
to the Agency Bank within 120 days after every fiscal year and
deliver an unaudited semi-annual financial statement to the Agency
Bank within 90 days after the first half of every fiscal year;
c) after the execution of this Guarantee, the Guarantors respectively
or along with the Borrower shall appoint one of the top six
international accounting firms to prepare semi-annual consolidated
financial statements of the Guarantors in accordance with the
accounting standards of China and deliver them to the Lending Banks
through the Agency Bank. In the event that the parent company of the
Guarantors, namely China Mobile (Hong Kong) Limited shall arrange
and prepare audited semi-annual financial statements in accordance
with laws of Hong Kong rules of Hong Kong Stock Exchange, the
semi-annual consolidated financial statements of the Guarantors
hereunder shall be audited financial statements; otherwise, the
international accounting firm ranked among the top six international
accounting firms shall prepare unaudited semi-annual consolidated
financial statements of the Guarantors and provide the Agency Bank
with a letter, indicating that the unaudited semi-annual
consolidated financial statements of the Guarantors prepared by the
firm (1) is in accordance with the accounting standards of China;
(2) the preparation method is reasonable and correct. Such
semi-annual consolidated financial statements shall at the same time
be attached with a letter produced by the Guarantors indicating the
truthfulness of the data presented in the financial statements.
Expense incurred in the preparation of the financial statements
shall be borne by the Guarantors and/or the Borrower;
d) the Guarantors respectively or along with the Borrower shall appoint
one of the top six international accounting firms to prepare
semi-annual consolidated financial statements for the six Guarantors
hereunder and deliver them, through the Agency Bank, to the Lending
Banks. The Guarantors and/or Borrower shall bear the relevant fees
and charges;
e) the Guarantors shall notify the Agency Bank immediately with regard
to the following issues:
i) lawsuit, arbitration or claims in any other forms regarding
any
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creditor's claim with the total amount exceeding Renminbi
three hundred million (RMB 300,000,000) or with the equivalent
amount in other currencies;
ii) merger with other companies or business institutions;
iii) sales, transfer or other means of disposal of assets or
business of more than Renminbi one billion (RMB
1,000,000,000);
f) the Guarantors shall abide by applicable laws, rules and regulation,
authorities or agreements, perform relevant obligations and pay any
due and payable tax;
g) in the event that the aggregate balance of debt or contingent
liabilities of the Guarantors is less than one hundred and twenty
percent (120%) of the total shareholders' equity, the Guarantors
shall notify the Agency Bank on a timely basis of their material or
possible debts incurred, assumed or newly-established with the
amount of a single item exceeding Renminbi one billion (RMB
1,000,000,000) or debt with equivalent value and immediately provide
the Agency Bank with text of the agreement regarding the material
debt or contingent liabilities; in the event that the aggregated
balance of the debt or contingent liabilities of the Guarantors
exceeds one hundred and twenty percent (120%) of the total
shareholders' equity, the Guarantors shall not incur, assume or
establish any additional debt or contingent liabilities without the
Lending Banks' prior consent. To this end, the Guarantors shall
notify the Agency Bank in writing of the event that the Guarantors
may incur, assume or establish additional debts or contingent
liabilities with attachment of a draft of the agreement regarding
the relevant debts and contingent liabilities. The Agency Bank shall
notify the Guarantors within ten (10) Bank Business Days after
receipt of the above written Notice if the Agency Bank agrees upon
the above debts or contingent liabilities. The Agency Bank's failure
to notify the Guarantors within the above time limit shall be deemed
as consent;
h) the Guarantors will not take any action or procedure for the purpose
of dissolution, liquidation or termination of the business without
the Lending Banks' prior consent;
i) No other debt or contingent liabilities with higher rank of priority
over the debts and contingent liabilities hereunder in respect of
the order of payment will be created.
16. The validity, presumption and interpretation of this Guarantee and all the
rights, obligations and liabilities arising out of this Guarantee shall be
governed by and interpreted according to the laws of China. Any legal
actions or proceedings taken against the Guarantors or any of their assets
in connection with this Guarantee shall be submitted to the competent
tribunal of economic adjudication of the people's court in Beijing.
17. In the event that any payment under this Guarantee is required to be made
on a
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Non-Bank Business Day, such payment shall be postponed to the next Bank
Business Day or any other date provided under the Loan Agreement.
18. The Term of the Guarantee herein shall begin from the date of the
execution of the Syndicated Loan Agreement and end on the first
anniversary of the expiry of the Term of the Loan stipulated under the
Syndicated Loan Agreement; in the event that the loan is extended, the
term of the Guarantee shall end on the first anniversary of the expiry of
renewed term of the Loan.
On this basis, the Guarantors have executed this Guarantee in favor of the
Agency Bank and the Lending Banks, which shall come into effect upon execution
of the Letter of Guarantee by the Guarantors and the stamp of their official
seals.
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GUARANTOR SIGNATURE PAGE Re: Provision to the Lending Banks
of irrevocable and unconditional
guarantee with joint liabilities
regarding the Syndicated Loan
Agreement on RMB 5,000,000,000
Loan executed on the date of
October 7, 2000 between China
Mobile (Shenzhen) Limited and Bank
of China, Construction Bank of
China and other Lending Banks
listed in Schedule One of the
Syndicated Loan Agreement.
GUARANTOR: FUJIAN MOBILE COMMUNICATION COMPANY LIMITED
(OFFICIAL SEAL)
AUTHORIZED REPRESENTATIVE: /S/ LIN LIXUN
-----------------
NAME:
TITLE: DEPUTY GENERAL MANAGER
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GUARANTEE
To: Bank of China, Construction Bank of China and other Lending Banks
indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB
5,000,000,000) (the "Loan Agreement") executed on the date of October 7, 2000
between China Mobile (Shenzhen) Limited and Bank of China, Construction Bank of
China and other Lending Banks listed in Schedule One of the Syndicated Loan
Agreement (the " Lending Banks").
Henan Mobile Communication Company Limited (the "Guarantor") is a wholly
foreign-owned limited liability company established and existing under the laws
of the People's Republic of China ("China"), with its registered address of its
headquarter at No. 115 Huanghe Rd., Zhengzhou, Henan. In accordance with
Security Law of the People's Republic of China (the "Security Law") and other
relevant laws and regulations, the Guarantor hereby provides the Lending Banks
with a Guarantee in favor of the Lending Banks and undertakes to perform its
obligations in accordance with stipulations under this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned
limited liability company established and existing under the laws of China, will
execute the Loan Agreement on the same date of the execution of the Letter of
Guarantee. The Loan Agreement Provides that the total amount of the principal of
the loan (the "Loan") granted to the Borrower by the Lending Banks shall not
exceed Renminbi five billion (RMB 5,000,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation
to disburse the Loan under the Loan Agreement is, including but not limited to,
the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in
favor of the Lending Banks issued by the Guarantor, guaranteeing that the
Borrower will pay all the payable sums from time to time to the Lending Banks
through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other
Guarantors, including Guangdong Mobile Communication Company Limited, Zhejiang
Communication Company Limited, Jiangsu Mobile Communication Company Limited,
Fujian Mobile Communication Company Limited and Hainan Mobile Communication
Company Limited (the "Guarantors") shall assume joint and several liabilities
for all debts, responsibilities and obligations stipulated under the Loan
Agreement, and that the Guarantor and the Borrower under the Syndicated Loan
Agreement shall assume joint and several liabilities for all debts,
responsibilities and obligations stipulated under the agreement.
Unless otherwise stipulated, terms used this Letter of Guarantee shall
have the same meaning as defined in the Loan Agreement.
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The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities
(similarly hereinafter), the Guarantor and other Guarantors indicated
hereby absolutely and unconditionally guarantee to the Agency Bank and the
Lending Banks that the Borrower shall make payments in full, promptly and
on a timely basis when any part of and/or all the principal, interest,
Default Interest, compensation, fees to satisfy creditor's claim and other
amounts fall due whether pursuant to the provisions, as a result of
accelerated repayment or otherwise in accordance with the stipulations
under the Loan Agreement, and any and/or all of any other relevant
documents and agreements; the Guarantor understands and acknowledges that
in accordance with the Security Law, (1) the Lending Banks may request the
Borrower to perform its liabilities or request the Guarantor to assume its
guarantee liabilities within the limit of the Guarantee in the event that
Borrower under the Guarantee with joint liabilities has not performed its
liabilities before the deadline for performance of the liabilities; i.e.,
upon the Borrower's failure to pay the due and payable sum under the Loan
Agreement and the occurrence of events and circumstances of default, the
Agency Bank may first request payment from the Guarantors who assume joint
liabilities for debts together with the Borrower and need not first
request payment from the Borrower; (2) in the event that two or more than
two Guarantors assume joint guarantee liabilities, the Lending Banks may
request any one of them to assume the entire guarantee liabilities. All
Guarantors shall assume the obligation to guarantee the satisfaction of
the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire
guaranteed obligation on the part of the Borrower, or upon occurrence of
Event of Default or Anticipatory Event of Default, the Guarantors, as
surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the
Borrower (whether as a result of acceleration or otherwise) to the Agency
Bank in favor of the Lending Banks in accordance with instructions of the
Agency Bank, stipulations under the Loan Agreement and in the manner
required thereby. The Guarantors shall not advance any claim, set-off,
counterclaim or defense to the Agency Bank or any Lending Bank regarding
the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default
hereof, if no corrections have been made within the correction period of
twenty eight (28) working days stipulated under Article 14.4 of the Loan
Agreement, the Lending Banks shall be vested the power to deliver Notice
of Claims accompanied with certificates regarding the Borrower's
non-payment of any of the due and payable amount to the Guarantors, who,
upon receipt of the above Notice of Claims, shall perform its guarantee
obligation in accordance with the amount indicated in the Notice of
Claims. Notwithstanding the foregoing, should the loan principal and/or
interest under the Loan Agreement not be repaid and/or paid, the Lending
Banks shall be vested the power to deliver Notice of Claims accompanied
with certificates regarding the Borrower's non-payment of such principal
and/or interest to the Guarantors, who, upon receipt of the above Notice,
shall perform its guarantee obligation in accordance with the amount
indicated in the Notice of
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Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and
shall not be limited or affected by any circumstances, including (but not
limited to) (1) the Borrower's failure to perform or comply with the Loan
Agreement or any stipulations under any such documents or agreements; (2)
transfer by the Borrower for the benefit of the Creditor (not limited to
the Creditor's interest under this Guarantee), request to nominate a
Recipient, Trustee or Liquidator for the Borrower or any of its assets,
upon declaration of liquidation or filing of the request of liquidation on
the part of the Borrower, or any other measures taken for the above
purposes; (3) changes in the Borrower's name, scope of business,
registered capital or organization documents; or (4) any other
circumstances that may constitute a relief of obligations that shall be
assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the
Guarantee, the Loan Agreement or of the payment under any other relevant
guarantees, documents or agreements, however, such negligence or restraint
shall not affect or mitigate the Guarantors' obligations under the
Guarantee herein. Guarantors shall not request the Agency Bank to make
enforcement of the Loan Agreement or any other guarantees as a
prerequisite of the enforcement of the Guarantee herein. The Failure to
enforce the Loan Agreement or any other guarantees shall not affect or
mitigate the Guarantee herein or defend against the Guarantee herein for
such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned
subsidiaries directly or indirectly owned by China Mobile (Hong Kong)
Limited in China within the term of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein
may at any moment be renewed, extended, amended, compromised, exempted or
abandoned by the Agency Bank or Lending Banks upon request of the
Borrower, and such conducts shall not impair or affect the Guarantors'
liabilities under the Guarantee herein; and the guarantee liabilities of
the Guarantors under the Guarantee herein shall also apply to the above
renewal, extension, amendment or compromise by the Agency Bank and Lending
Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the
guaranteed liabilities. However, before the Agency Bank is vested the
power to receive any debts under the guarantee liabilities, it shall have
no obligation to exhaust its right of recourse against the Borrower, nor
shall it have any obligation to exhaust its right of recourse the Agency
Bank or certain Lending Banks may have against any Guarantor or any
guarantee. This Guarantee shall be irrevocable and with full force before
the full performance of the guaranteed obligations and the full payment of
any indebted amount under the guarantee. The Guarantors shall waive the
defense arising from any time limit that might affect the obligations
hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest
and/or other amounts under the Loan Agreement, the Guarantor shall not
have the right of subrogation obtained as a result of its performance of
any of the guarantee
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liabilities hereunder. Notwithstanding the foregoing, in the event that
the Guarantor receives any sums as a result of its entitlement to such
right of subrogation while one of the guaranteed obligations has not been
performed, the Guarantor shall agree to pay all such sums to the Agency
Bank to offset the amount over due under stipulations of the Loan
Agreement.
10. The Guarantors agree to pay all fees and charges related to the
enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in
the form of Renminbi and paid by the Guarantors in accordance with the
Guarantee in Renminbi. In any circumstances, Renminbi shall be the
currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and
(1) delivered by special messenger; (2) sent by reputable courier service,
or (3) transmitted by telex or facsimile. The address of the Guarantor:
Name of the Company: Henan Mobile Communication Company Limited., Address:
No. 115 Huanghe Rd., Zhengzhou, Henan, Postal Code: 450003, Contact: Zhang
Yuzhong, Telephone Number: 0371-5956622, Fax: 0371-5968855, E-mail:
zyz0129@371.net. The date of Notice or Request referred to herein shall be
(1) the day of the receipt thereof if by delivery by special messenger;
(2) the next day following the delivery to the courier service company if
delivered by a creditable courier service; or (3) the fourth day following
the delivery to the postal service if delivered by post-paid registered
mail; (4) the delivery date with confirmation of acceptance if delivered
by telex or facsimile. For the purpose hereof, the Guarantor may change
its address by a written notice to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successor
and the transferees and may be enforced by the Agency Bank, the Lending
Banks, its successors and transferees. The Guarantor shall have no right
to assign or to otherwise transfer the obligations hereunder. The Lending
Bank may transfer part or all of its rights and interest hereunder to
another Lending Bank at any time, in which case the Guarantor shall be
promptly informed of such a transfer upon completion of the transfer; in
the event that the Lending Bank needs to transfer its rights and interest
hereunder to a bank or financial institution other than the Lending Banks,
the Lending Bank shall obtain the consent of the Guarantors first (which
consent shall not be unreasonably withheld). The Guarantors' Obligations
hereunder shall not be Limited or affected in anyway by the above
assignment or transfer. Any of the above assignment and transfer shall
come into effect and be binding on the Guarantors upon the date of such
assignment or transfer.
14. The Guarantors hereby represent and warrant that:
a) the Guarantors are established and validly existing under the Laws
of China, with its registered address as above;
b) the Guarantors have full legal rights, powers and authority to
conduct their existing operations, possess their assets, assume this
Guarantee and other obligations stipulated hereunder, execute and
deliver this Guarantee and to
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perform and comply with the terms and conditions hereunder;
c) the Guarantors have taken all appropriate and necessary corporate
and legal actions to authorize the execution and delivery of this
Guarantee and to perform and abide by the stipulations and terms
hereunder;
d) except for the relevant documents already obtained and submitted to
the Agency Bank and the Lending Banks, the execution, delivery,
effectiveness, performance, enforcement, the validity as evidence in
legal proceedings of this Guarantee and the Guarantors' obligations
hereunder do not require further consent from any other governmental
departments or agency or any other shareholders or creditors, or
notification thereto, or registration or filing therewith, or other
actions to be taken;
e) This Guarantee constitutes the legal and valid obligations binding
on the Guarantors and can be enforced in accordance with its
stipulations. The execution, delivery, performance of terms and
conditions hereunder, the payment of all the due and payable amount
in the currency stipulated hereunder on the date indicated herein do
not (1) infringe or violate any stipulations of any applicable laws
of China and other government regulations (with legal validity or
not); (2) violate any government guidelines and policies (with no
legal validity) applicable to the Guarantors; (3) conflict with the
business license of the Guarantors; (4) conflict with any
agreements, debentures, mortgages or other documents other than this
Guarantee to which the Guarantor is a Party or the Guarantor or its
assets is bound, and will not bring about consequences of violation
of any of the stipulations thereof nor create any mortgage, lien,
pledge, security interests or preferential arrangement; (5)
constitute Event of Default under any agreement nor constitute Event
of Default due to delivery of Notice or elapse of time or both;
f) under any agreement to which the Guarantor is a Party or the
Guarantor or its assets is bound, no Event of Default has occurred
on the part of the Guarantor which affects the Guarantor's ability
to pay the full amount payable hereunder;
g) this Guarantee constitutes the Guarantors' direct, unconditional and
comprehensive obligations. With respect to the priority order of the
Guarantor's payment of other loans, liabilities, guarantee or
obligations and all other aspect the Guarantors' obligations
hereunder at least have and will have the priority equal to the
guaranteed loans, liabilities or obligations and other guarantee;
h) there are no material or possible debts that have potential adverse
impact on the Guarantor's performance of its guarantee obligations
hereunder which has not been disclosed to the Agency Bank or the
Lending Banks by the Guarantor;
i) there are no pending or threatening lawsuit, arbitration or other
proceedings against the Guarantors with the tribunal of arbitration,
the court,
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governmental agencies or administrative agencies which may affect
the financial status or operation of the Guarantors, or impair the
Guarantors' ability to pay all or part of the payable amount in
accordance with this Guarantee, or affect the validity or
enforcement of this Guarantee in anyway;
j) the Guarantors undertake their business and operations in accordance
with all applicable laws, rules and regulations of China.
15. The Guarantors further warrant that:
a) the Guarantors shall maintain their accounting system in accordance
with the accounting principles stipulated under the laws of China;
b) the Guarantors shall deliver an audited annual financial statement
to the Agency Bank within 120 days after every fiscal year and
deliver an unaudited semi-annual financial statement to the Agency
Bank within 90 days after the first half of every fiscal year;
c) after the execution of this Guarantee, the Guarantors respectively
or along with the Borrower shall appoint one of the top six
international accounting firms to prepare semi-annual consolidated
financial statements of the Guarantors in accordance with the
accounting standards of China and deliver them to the Lending Banks
through the Agency Bank. In the event that the parent company of the
Guarantors, namely China Mobile (Hong Kong) Limited shall arrange
and prepare audited semi-annual financial statements in accordance
with laws of Hong Kong rules of Hong Kong Stock Exchange, the
semi-annual consolidated financial statements of the Guarantors
hereunder shall be audited financial statements; otherwise, the
international accounting firm ranked among the top six international
accounting firms shall prepare unaudited semi-annual consolidated
financial statements of the Guarantors and provide the Agency Bank
with a letter, indicating that the unaudited semi-annual
consolidated financial statements of the Guarantors prepared by the
firm (1) is in accordance with the accounting standards of China;
(2) the preparation method is reasonable and correct. Such
semi-annual consolidated financial statements shall at the same time
be attached with a letter produced by the Guarantors indicating the
truthfulness of the data presented in the financial statements.
Expense incurred in the preparation of the financial statements
shall be borne by the Guarantors and/or the Borrower;
d) the Guarantors respectively or along with the Borrower shall appoint
one of the top six international accounting firms to prepare
semi-annual consolidated financial statements for the six Guarantors
hereunder and deliver them, through the Agency Bank, to the Lending
Banks. The Guarantors and/or Borrower shall bear the relevant fees
and charges;
e) the Guarantors shall notify the Agency Bank immediately with regard
to the following issues:
i) lawsuit, arbitration or claims in any other forms regarding
any
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creditor's claim with the total amount exceeding Renminbi
three hundred million (RMB 300,000,000) or with the equivalent
amount in other currencies;
ii) merger with other companies or business institutions;
iii) sales, transfer or other means of disposal of assets or
business of more than Renminbi one billion (RMB
1,000,000,000);
f) the Guarantors shall abide by applicable laws, rules and regulation,
authorities or agreements, perform relevant obligations and pay any
due and payable tax;
g) in the event that the aggregate balance of debt or contingent
liabilities of the Guarantors is less than one hundred and twenty
percent (120%) of the total shareholders' equity, the Guarantors
shall notify the Agency Bank on a timely basis of their material or
possible debts incurred, assumed or newly-established with the
amount of a single item exceeding Renminbi one billion (RMB
1,000,000,000) or debt with equivalent value and immediately provide
the Agency Bank with text of the agreement regarding the material
debt or contingent liabilities; in the event that the aggregated
balance of the debt or contingent liabilities of the Guarantors
exceeds one hundred and twenty percent (120%) of the total
shareholders' equity, the Guarantors shall not incur, assume or
establish any additional debt or contingent liabilities without the
Lending Banks' prior consent. To this end, the Guarantors shall
notify the Agency Bank in writing of the event that the Guarantors
may incur, assume or establish additional debts or contingent
liabilities with attachment of a draft of the agreement regarding
the relevant debts and contingent liabilities. The Agency Bank shall
notify the Guarantors within ten (10) Bank Business Days after
receipt of the above written Notice if the Agency Bank agrees upon
the above debts or contingent liabilities. The Agency Bank's failure
to notify the Guarantors within the above time limit shall be deemed
as consent;
h) the Guarantors will not take any action or procedure for the purpose
of dissolution, liquidation or termination of the business without
the Lending Banks' prior consent;
i) No other debt or contingent liabilities with higher rank of priority
over the debts and contingent liabilities hereunder in respect of
the order of payment will be created.
16. The validity, presumption and interpretation of this Guarantee and all the
rights, obligations and liabilities arising out of this Guarantee shall be
governed by and interpreted according to the laws of China. Any legal
actions or proceedings taken against the Guarantors or any of their assets
in connection with this Guarantee shall be submitted to the competent
tribunal of economic adjudication of the people's court in Beijing.
17. In the event that any payment under this Guarantee is required to be made
on a
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Non-Bank Business Day, such payment shall be postponed to the next Bank
Business Day or any other date provided under the Loan Agreement.
18. The Term of the Guarantee herein shall begin from the date of the
execution of the Syndicated Loan Agreement and end on the first
anniversary of the expiry of the Term of the Loan stipulated under the
Syndicated Loan Agreement; in the event that the loan is extended, the
term of the Guarantee shall end on the first anniversary of the expiry of
renewed term of the Loan.
On this basis, the Guarantors have executed this Guarantee in favor of the
Agency Bank and the Lending Banks, which shall come into effect upon execution
of the Letter of Guarantee by the Guarantors and the stamp of their official
seals.
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GUARANTOR SIGNATURE PAGE Re: Provision to the Lending Banks
of irrevocable and unconditional
guarantee with joint liabilities
regarding the Syndicated Loan
Agreement on RMB 5,000,000,000
Loan executed on the date of
October 7, 2000 between China
Mobile (Shenzhen) Limited and Bank
of China, Construction Bank of
China and other Lending Banks
listed in Schedule One of the
Syndicated Loan Agreement.
GUARANTOR: HENAN MOBILE COMMUNICATION COMPANY LIMITED
(OFFICIAL SEAL)
AUTHORIZED REPRESENTATIVE: /S/ LU JIE
--------------
NAME: LU JIE
TITLE: MANAGER OF FINANCIAL DEPARTMENT
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GUARANTEE
To: Bank of China, Construction Bank of China and other Lending Banks
indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB
5,000,000,000) (the "Loan Agreement") executed on the date of October 7, 2000
between China Mobile (Shenzhen) Limited and Bank of China, Construction Bank of
China and other Lending Banks listed in Schedule One of the Syndicated Loan
Agreement (the "Lending Banks").
Hainan Mobile Communication Company Limited (the "Guarantor") is a wholly
foreign-owned limited liability company established and existing under the laws
of the People's Republic of China ("China"), with its registered address of its
headquarter at No. 22, Nanbao Rd., Haikou, Hainan. In accordance with Security
Law of the People's Republic of China (the "Security Law") and other relevant
laws and regulations, the Guarantor hereby provides the Lending Banks with a
Guarantee in favor of the Lending Banks and undertakes to perform its
obligations in accordance with stipulations under this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned
limited liability company established and existing under the laws of China, will
execute the Loan Agreement on the same date of the execution of the Letter of
Guarantee. The Loan Agreement Provides that the total amount of the principal of
the loan (the "Loan") granted to the Borrower by the Lending Banks shall not
exceed Renminbi five billion (RMB 5,000,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation
to disburse the Loan under the Loan Agreement is, including but not limited to,
the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in
favor of the Lending Banks issued by the Guarantor, guaranteeing that the
Borrower will pay all the payable sums from time to time to the Lending Banks
through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other
Guarantors, including Guangdong Mobile Communication Company Limited, Zhejiang
Communication Company Limited, Jiangsu Mobile Communication Company Limited,
Fujian Mobile Communication Company Limited and Henan Mobile Communication
Company Limited (the "Guarantors") shall assume joint and several liabilities
for all debts, responsibilities and obligations stipulated under the Loan
Agreement, and that the Guarantor and the Borrower under the Syndicated Loan
Agreement shall assume joint and several liabilities for all debts,
responsibilities and obligations stipulated under the agreement.
Unless otherwise stipulated, terms used this Letter of Guarantee shall
have the same meaning as defined in the Loan Agreement.
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The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities
(similarly hereinafter), the Guarantor and other Guarantors indicated
hereby absolutely and unconditionally guarantee to the Agency Bank and the
Lending Banks that the Borrower shall make payments in full, promptly and
on a timely basis when any part of and/or all the principal, interest,
Default Interest, compensation, fees to satisfy creditor's claim and other
amounts fall due whether pursuant to the provisions, as a result of
accelerated repayment or otherwise in accordance with the stipulations
under the Loan Agreement, and any and/or all of any other relevant
documents and agreements; the Guarantor understands and acknowledges that
in accordance with the Security Law, (1) the Lending Banks may request the
Borrower to perform its liabilities or request the Guarantor to assume its
guarantee liabilities within the limit of the Guarantee in the event that
Borrower under the Guarantee with joint liabilities has not performed its
liabilities before the deadline for performance of the liabilities; i.e.,
upon the Borrower's failure to pay the due and payable sum under the Loan
Agreement and the occurrence of events and circumstances of default, the
Agency Bank may first request payment from the Guarantors who assume joint
liabilities for debts together with the Borrower and need not first
request payment from the Borrower; (2) in the event that two or more than
two Guarantors assume joint guarantee liabilities, the Lending Banks may
request any one of them to assume the entire guarantee liabilities. All
Guarantors shall assume the obligation to guarantee the satisfaction of
the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire
guaranteed obligation on the part of the Borrower, or upon occurrence of
Event of Default or Anticipatory Event of Default, the Guarantors, as
surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the
Borrower (whether as a result of acceleration or otherwise) to the Agency
Bank in favor of the Lending Banks in accordance with instructions of the
Agency Bank, stipulations under the Loan Agreement and in the manner
required thereby. The Guarantors shall not advance any claim, set-off,
counterclaim or defense to the Agency Bank or any Lending Bank regarding
the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default
hereof, if no corrections have been made within the correction period of
twenty eight (28) working days stipulated under Article 14.4 of the Loan
Agreement, the Lending Banks shall be vested the power to deliver Notice
of Claims accompanied with certificates regarding the Borrower's
non-payment of any of the due and payable amount to the Guarantors, who,
upon receipt of the above Notice of Claims, shall perform its guarantee
obligation in accordance with the amount indicated in the Notice of
Claims. Notwithstanding the foregoing, should the loan principal and/or
interest under the Loan Agreement not be repaid and/or paid, the Lending
Banks shall be vested the power to deliver Notice of Claims accompanied
with certificates regarding the Borrower's non-payment of such principal
and/or interest to the Guarantors, who, upon receipt of the above Notice,
shall perform its guarantee obligation in accordance with the amount
indicated in the Notice of
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Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and
shall not be limited or affected by any circumstances, including (but not
limited to) (1) the Borrower's failure to perform or comply with the Loan
Agreement or any stipulations under any such documents or agreements; (2)
transfer by the Borrower for the benefit of the Creditor (not limited to
the Creditor's interest under this Guarantee), request to nominate a
Recipient, Trustee or Liquidator for the Borrower or any of its assets,
upon declaration of liquidation or filing of the request of liquidation on
the part of the Borrower, or any other measures taken for the above
purposes; (3) changes in the Borrower's name, scope of business,
registered capital or organization documents; or (4) any other
circumstances that may constitute a relief of obligations that shall be
assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the
Guarantee, the Loan Agreement or of the payment under any other relevant
guarantees, documents or agreements, however, such negligence or restraint
shall not affect or mitigate the Guarantors' obligations under the
Guarantee herein. Guarantors shall not request the Agency Bank to make
enforcement of the Loan Agreement or any other guarantees as a
prerequisite of the enforcement of the Guarantee herein. The Failure to
enforce the Loan Agreement or any other guarantees shall not affect or
mitigate the Guarantee herein or defend against the Guarantee herein for
such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned
subsidiaries directly or indirectly owned by China Mobile (Hong Kong)
Limited in China within the term of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein
may at any moment be renewed, extended, amended, compromised, exempted or
abandoned by the Agency Bank or Lending Banks upon request of the
Borrower, and such conducts shall not impair or affect the Guarantors'
liabilities under the Guarantee herein; and the guarantee liabilities of
the Guarantors under the Guarantee herein shall also apply to the above
renewal, extension, amendment or compromise by the Agency Bank and Lending
Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the
guaranteed liabilities. However, before the Agency Bank is vested the
power to receive any debts under the guarantee liabilities, it shall have
no obligation to exhaust its right of recourse against the Borrower, nor
shall it have any obligation to exhaust its right of recourse the Agency
Bank or certain Lending Banks may have against any Guarantor or any
guarantee. This Guarantee shall be irrevocable and with full force before
the full performance of the guaranteed obligations and the full payment of
any indebted amount under the guarantee. The Guarantors shall waive the
defense arising from any time limit that might affect the obligations
hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest
and/or other amounts under the Loan Agreement, the Guarantor shall not
have the right of subrogation obtained as a result of its performance of
any of the guarantee
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liabilities hereunder. Notwithstanding the foregoing, in the event that
the Guarantor receives any sums as a result of its entitlement to such
right of subrogation while one of the guaranteed obligations has not been
performed, the Guarantor shall agree to pay all such sums to the Agency
Bank to offset the amount over due under stipulations of the Loan
Agreement.
10. The Guarantors agree to pay all fees and charges related to the
enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in
the form of Renminbi and paid by the Guarantors in accordance with the
Guarantee in Renminbi. In any circumstances, Renminbi shall be the
currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and
(1) delivered by special messenger; (2) sent by reputable courier service,
or (3) transmitted by telex or facsimile. The address of the Guarantor:
Name of the Company: Hainan Mobile Communication Company Limited.,
Address: No. 22, Nanbao Rd., Haikou, Hainan, Postal Code: 570125, Contact:
Lan Qingchun, Telephone Number: 0898-6763132, Fax: 0898-6715461, E-mail:
lqc@qmcc.net. The date of Notice or Request referred to herein shall be
(1) the day of the receipt thereof if by delivery by special messenger;
(2) the next day following the delivery to the courier service company if
delivered by a creditable courier service; or (3) the fourth day following
the delivery to the postal service if delivered by post-paid registered
mail; (4) the delivery date with confirmation of acceptance if delivered
by telex or facsimile. For the purpose hereof, the Guarantor may change
its address by a written notice to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successor
and the transferees and may be enforced by the Agency Bank, the Lending
Banks, its successors and transferees. The Guarantor shall have no right
to assign or to otherwise transfer the obligations hereunder. The Lending
Bank may transfer part or all of its rights and interest hereunder to
another Lending Bank at any time, in which case the Guarantor shall be
promptly informed of such a transfer upon completion of the transfer; in
the event that the Lending Bank needs to transfer its rights and interest
hereunder to a bank or financial institution other than the Lending Banks,
the Lending Bank shall obtain the consent of the Guarantors first (which
consent shall not be unreasonably withheld). The Guarantors' Obligations
hereunder shall not be Limited or affected in anyway by the above
assignment or transfer. Any of the above assignment and transfer shall
come into effect and be binding on the Guarantors upon the date of such
assignment or transfer.
14. The Guarantors hereby represent and warrant that:
a) the Guarantors are established and validly existing under the Laws
of China, with its registered address as above;
b) the Guarantors have full legal rights, powers and authority to
conduct their existing operations, possess their assets, assume this
Guarantee and other obligations stipulated hereunder, execute and
deliver this Guarantee and to
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perform and comply with the terms and conditions hereunder;
c) the Guarantors have taken all appropriate and necessary corporate
and legal actions to authorize the execution and delivery of this
Guarantee and to perform and abide by the stipulations and terms
hereunder;
d) except for the relevant documents already obtained and submitted to
the Agency Bank and the Lending Banks, the execution, delivery,
effectiveness, performance, enforcement, the validity as evidence in
legal proceedings of this Guarantee and the Guarantors' obligations
hereunder do not require further consent from any other governmental
departments or agency or any other shareholders or creditors, or
notification thereto, or registration or filing therewith, or other
actions to be taken;
e) This Guarantee constitutes the legal and valid obligations binding
on the Guarantors and can be enforced in accordance with its
stipulations. The execution, delivery, performance of terms and
conditions hereunder, the payment of all the due and payable amount
in the currency stipulated hereunder on the date indicated herein do
not (1) infringe or violate any stipulations of any applicable laws
of China and other government regulations (with legal validity or
not); (2) violate any government guidelines and policies (with no
legal validity) applicable to the Guarantors; (3) conflict with the
business license of the Guarantors; (4) conflict with any
agreements, debentures, mortgages or other documents other than this
Guarantee to which the Guarantor is a Party or the Guarantor or its
assets is bound, and will not bring about consequences of violation
of any of the stipulations thereof nor create any mortgage, lien,
pledge, security interests or preferential arrangement; (5)
constitute Event of Default under any agreement nor constitute Event
of Default due to delivery of Notice or elapse of time or both;
f) under any agreement to which the Guarantor is a Party or the
Guarantor or its assets is bound, no Event of Default has occurred
on the part of the Guarantor which affects the Guarantor's ability
to pay the full amount payable hereunder;
g) this Guarantee constitutes the Guarantors' direct, unconditional and
comprehensive obligations. With respect to the priority order of the
Guarantor's payment of other loans, liabilities, guarantee or
obligations and all other aspect the Guarantors' obligations
hereunder at least have and will have the priority equal to the
guaranteed loans, liabilities or obligations and other guarantee;
h) there are no material or possible debts that have potential adverse
impact on the Guarantor's performance of its guarantee obligations
hereunder which has not been disclosed to the Agency Bank or the
Lending Banks by the Guarantor;
i) there are no pending or threatening lawsuit, arbitration or other
proceedings against the Guarantors with the tribunal of arbitration,
the court,
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governmental agencies or administrative agencies which may affect
the financial status or operation of the Guarantors, or impair the
Guarantors' ability to pay all or part of the payable amount in
accordance with this Guarantee, or affect the validity or
enforcement of this Guarantee in anyway;
j) the Guarantors undertake their business and operations in accordance
with all applicable laws, rules and regulations of China.
15. The Guarantors further warrant that:
a) the Guarantors shall maintain their accounting system in accordance
with the accounting principles stipulated under the laws of China;
b) the Guarantors shall deliver an audited annual financial statement
to the Agency Bank within 120 days after every fiscal year and
deliver an unaudited semi-annual financial statement to the Agency
Bank within 90 days after the first half of every fiscal year;
c) after the execution of this Guarantee, the Guarantors respectively
or along with the Borrower shall appoint one of the top six
international accounting firms to prepare semi-annual consolidated
financial statements of the Guarantors in accordance with the
accounting standards of China and deliver them to the Lending Banks
through the Agency Bank. In the event that the parent company of the
Guarantors, namely China Mobile (Hong Kong) Limited shall arrange
and prepare audited semi-annual financial statements in accordance
with laws of Hong Kong rules of Hong Kong Stock Exchange, the
semi-annual consolidated financial statements of the Guarantors
hereunder shall be audited financial statements; otherwise, the
international accounting firm ranked among the top six international
accounting firms shall prepare unaudited semi-annual consolidated
financial statements of the Guarantors and provide the Agency Bank
with a letter, indicating that the unaudited semi-annual
consolidated financial statements of the Guarantors prepared by the
firm (1) is in accordance with the accounting standards of China;
(2) the preparation method is reasonable and correct. Such
semi-annual consolidated financial statements shall at the same time
be attached with a letter produced by the Guarantors indicating the
truthfulness of the data presented in the financial statements.
Expense incurred in the preparation of the financial statements
shall be borne by the Guarantors and/or the Borrower;
d) the Guarantors respectively or along with the Borrower shall appoint
one of the top six international accounting firms to prepare
semi-annual consolidated financial statements for the six Guarantors
hereunder and deliver them, through the Agency Bank, to the Lending
Banks. The Guarantors and/or Borrower shall bear the relevant fees
and charges;
e) the Guarantors shall notify the Agency Bank immediately with regard
to the following issues:
i) lawsuit, arbitration or claims in any other forms regarding
any
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creditor's claim with the total amount exceeding Renminbi
three hundred million (RMB 300,000,000) or with the equivalent
amount in other currencies;
ii) merger with other companies or business institutions;
iii) sales, transfer or other means of disposal of assets or
business of more than Renminbi one billion (RMB
1,000,000,000);
f) the Guarantors shall abide by applicable laws, rules and regulation,
authorities or agreements, perform relevant obligations and pay any
due and payable tax;
g) in the event that the aggregate balance of debt or contingent
liabilities of the Guarantors is less than one hundred and twenty
percent (120%) of the total shareholders' equity, the Guarantors
shall notify the Agency Bank on a timely basis of their material or
possible debts incurred, assumed or newly-established with the
amount of a single item exceeding Renminbi one billion (RMB
1,000,000,000) or debt with equivalent value and immediately provide
the Agency Bank with text of the agreement regarding the material
debt or contingent liabilities; in the event that the aggregated
balance of the debt or contingent liabilities of the Guarantors
exceeds one hundred and twenty percent (120%) of the total
shareholders' equity, the Guarantors shall not incur, assume or
establish any additional debt or contingent liabilities without the
Lending Banks' prior consent. To this end, the Guarantors shall
notify the Agency Bank in writing of the event that the Guarantors
may incur, assume or establish additional debts or contingent
liabilities with attachment of a draft of the agreement regarding
the relevant debts and contingent liabilities. The Agency Bank shall
notify the Guarantors within ten (10) Bank Business Days after
receipt of the above written Notice if the Agency Bank agrees upon
the above debts or contingent liabilities. The Agency Bank's failure
to notify the Guarantors within the above time limit shall be deemed
as consent;
h) the Guarantors will not take any action or procedure for the purpose
of dissolution, liquidation or termination of the business without
the Lending Banks' prior consent;
i) No other debt or contingent liabilities with higher rank of priority
over the debts and contingent liabilities hereunder in respect of
the order of payment will be created.
16. The validity, presumption and interpretation of this Guarantee and all the
rights, obligations and liabilities arising out of this Guarantee shall be
governed by and interpreted according to the laws of China. Any legal
actions or proceedings taken against the Guarantors or any of their assets
in connection with this Guarantee shall be submitted to the competent
tribunal of economic adjudication of the people's court in Beijing.
17. In the event that any payment under this Guarantee is required to be made
on a
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Non-Bank Business Day, such payment shall be postponed to the next Bank
Business Day or any other date provided under the Loan Agreement.
18. The Term of the Guarantee herein shall begin from the date of the
execution of the Syndicated Loan Agreement and end on the first
anniversary of the expiry of the Term of the Loan stipulated under the
Syndicated Loan Agreement; in the event that the loan is extended, the
term of the Guarantee shall end on the first anniversary of the expiry of
renewed term of the Loan.
On this basis, the Guarantors have executed this Guarantee in favor of the
Agency Bank and the Lending Banks, which shall come into effect upon execution
of the Letter of Guarantee by the Guarantors and the stamp of their official
seals.
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GUARANTOR SIGNATURE PAGE Re: Provision to the Lending Banks
of irrevocable and unconditional
guarantee with joint liabilities
regarding the Syndicated Loan
Agreement on RMB 5,000,000,000
Loan executed on the date of
October 7, 2000 between China
Mobile (Shenzhen) Limited and Bank
of China, Construction Bank of
China and other Lending Banks
listed in Schedule One of the
Syndicated Loan Agreement.
GUARANTOR: HAINAN MOBILE COMMUNICATION COMPANY LIMITED
(OFFICIAL SEAL)
AUTHORIZED REPRESENTATIVE: /s/ WEI PING
----------------
NAME: WEI PING
TITLE: CHAIRMAN
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